UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


-bJf 


** 


THE  PROBATE  LAW  AND 
PRACTICE 

AND 

THE  LAWS  OF  SUCCESSION 
OF  THE  STATE  OF  INDIANA 


Being  a  Complete  and  Systematic  Treatise  on  the  Laws  of  the  State 
Relating  to 

DESCENT,  DISTRIBUTION,  PARTITION,  APPORTIONMENT  OF 
PROPERTY,  REAL  AND  PERSONAL,  AND  ON  SUCCES- 
SIONS,   BOTH    TESTATE    AND    INTESTATE,  TO- 
GETHER WITH  THE  POWERS  AND  DUTIES  OF 
EXECUTORS,  ADMINISTRATORS,  GUAR- 
DIANS, AND  COMMISSIONERS 

WITH  STANDARD  LIFE  AND  ANNUITY  TABLES 


Third  Edition 

Revised  and  Enlarged 
BY 

GEORGE  A.  HENRY 

OF  THE  MARION  BAR 

Including  a  Complete  Table  of  Forms,  Orders  and  Entries, 
Revised  by 

MERLE  N.  A.  WALKER 

FORMERLY  PROBATE  JUDGE  FOR  MARION  COUNTY 


IN  TWO  VOLUMES 
Volume  I 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


T 


Copyright  1912 

BY 

THE  BOBBS-MERRILL  COMPANY 


PREFACE  TO  THIRD  EDITION. 


It  is  pleasing  to  an  author  to  know  that  the  studious  care  he 
has  given  to  a  work  is  appreciated  by  those  for  whom  it  is  writ- 
ten, and  the  kindly  reception  of  the  former  editions  of  this  book 
by  the  courts  and  bar  of  the  state  has,  indeed,  been  gratifying  to 
the  writer,  and  furnishes  sufficient  justification  for  the  publica- 
tion of  the  present  edition. 

The  sixteen  years  that  have  elapsed  since  the  publication  of  the 
second  edition  furnishes  another  good  reason  for  the  present  re- 
vision. During  that  time  many  cases  have  been  decided  upon  the 
various  topics  embraced  in  the  work,  and  the  legislature  has  added 
many  new  statutes  and  amendments  to  old  ones.  The  reported 
decisions  to  the  date  of  this  publication  have  been  carefully  exam- 
ined and  the  conclusions  of  the  courts  in  those  decisions  wrought 
into  the  text  of  the  present  edition.  The  changes  made  in  the 
statute  law  have  been  noted  and  set  forth  in  their  proper  place. 
Copious  reference  has  been  made  to  the  decisions  and  statutes  of 
other  states,  and  to  English  and  foreign  cases,  as  well  as  to  vari- 
ous able  text-books  upon  the  subjects  involved. 

The  work  has  been  carefully  revised  and  enlarged  by  the  addi- 
tion of  much  new  matter.  And  while  the  general  structure  of  the 
work  is  unchanged,  there  has  been  a  rearrangement  of  the  sec- 
tions. Many  new  sections  have  been  added,  others  rewritten,  and 
some  consolidated.  Every  part  has  been  gone  over  with  conscien- 
tious care,  and  there  is  scarcely  a  section,  in  which,  either  in  the 
text  or  the  notes,  additions  and  changes  have  not  been  made.  The 
title  and  chapter  arrangement  of  the  second  edition  has  been  re- 
tained, except  as  to  that  part  relating  to  Voluntary  Assignments. 
The  Federal  bankruptcy  law  is  of  little  practical  importance  to  the 
subject  and  has  been  omitted  from  the  present  work. 

There  has  been  no  effort  to  cite  all  the  decided  cases,  the  author 
preferring  to  cite  a  few  cases  directly  to  the  point  rather  than 

iii 


iv  PREFACE. 

cumber  the  work  with  a  vast  Hst  of  citations.  Parallel  references 
are  given  to  the  official  state  reports,  also  the  Reporter  system,  the 
American  Decisions,  Reports  and  State  Reports  and  to  the  L.  R. 
A.  The  Indiana  Supreme  Court  Reports  are  cited  from  the  ist 
Blackford  to  the  174th  Indiana  inclusive,  the  Indiana  Appellate 
Court  Reports  from  the  ist  volume  to  the  46th  inclusive,  and  in 
addition  all  Indiana  cases  reported  in  the  Northeastern  Reporter 
to  the  date  of  publication  are  cited. 

The  statute  used  is  Burns'  R.  S.  1908,  and  such  changes  as 
were  made  by  the  legislature  in  1909  and  191 1  have  been  noted. 

The  forms  in  the  Second  Edition  having  stood  the  test  of  six- 
teen years'  use  have  been  retained  and  many  others  have  been 
added,  making  a  very  complete  list,  which  includes  all  kinds  of 
entries,  orders  and  decrees  necessary  in  proceedings  under  any  of 
the  subjects  of  which  the  book  treats. 

In  conclusion  the  author  deems  it  fitting  to  express  to  the 
bench  and  bar  of  the  state  his  appreciation  of  the  favorable  judg- 
ment already  pronounced  by  them  upon  his  previous  work,  and  to 
hope  that  such  judgment  will  not  be  modified  or  reversed  after  an 
examination  of  the  present  edition. 

G.  A.  HENRY. 

Marion,  Indiana,  September  2,  1912. 


TABLE   OF   CONTENTS 

OF  VOLUME  ONE 


TITLE  ONE 

SETTLEMENT  OF  ESTATES 

CHAPTER  I. 

JURISDICTION. 


§  1.  What  is  jurisdiction. 

2.  What  courts  have  jurisdiction. 

3.  Concurrent  jurisdiction. 

4.  Transfer  of  jurisdiction. 

5.  Marion  county  probate  court. 

6.  To  what  jurisdiction  is  limited. 

7.  Equitable  jurisdiction  of  probate 

courts. 

8.  Jurisdiction  as  affected  by  dom- 

icile. 

9.  Jurisdiction  as  afifected  by  assets. 
10.  Jurisdiction    when    judge    inter- 
ested in  estate. 


§  11.  Power  of  judges  in  vacation. 

12.  Powers  of  the  clerk  in  vacation. 

13.  Probate  courts  are  courts  of  rec- 

ord. 

14.  What  books  to  be  kept. 

15.  Jurisdiction    of    justices    of    the 

peace. 

16.  Probate  commissioners. 

17.  Oath  and  term  of  office. 

18.  Powers  and  duties. 

19.  Rules  and  their  enforcement. 

20.  Suspension  of  commissioner. 


CHAPTER  11. 


LETTERS  OF  ADMINISTRATION. 


§  21.  Generally. 

22.  The  right  to  letters. 

23.  Time  when  letters  issue. 

24.  Settlement    without    administra- 

tion. 
24a.  No      administration  —  Heirs' 
rights. 

25.  Where  granted. 


§  26.  Statute  must  be  complied  with. 

27.  Meaning  of  assets. 

28.  Assets  in  different  jurisdictions. 

29.  Ancillary  administration. 

30.  Powers   and  duties   of   ancillary 

administrators. 

31.  To      whom      letters      shall      be 

granted. 


VI 


TABLE   OF    CONTENTS. 


§  2)2.  Same — Statute  mandatory.  §  39. 
2)Z.  Void  and  voidable  letters. 

34.  Who  is  to  be  preferred.  40. 

35.  Right  of  husband  or  wife.  41. 
2i6.  The  right  of  others.  42. 

37.  The  right  in  the  same  degree.  43. 

38.  Who  not  entitled  to  letters.  44. 


Waiver   or    renunciation   of   the 

right. 
Miscellaneous. 
Form  of  petition. 
Letters  as  evidence. 
Notice  of  appointment. 
Proof  of  notice. 


CHAPTER  III. 


LETTERS  TESTAMENTARY. 


i  45.  When  issued  and  to  whom. 

46.  Who  not  competent  to  serve  as 

executors. 

47.  Who  shall  be  named. 

48.  Renunciation  of  right. 

49.  Letters  with  the  will  annexed. 


§  50.  Foreign  executors  to  have  pref- 
erence. 
5L  Executor  of  executor. 

52.  Executor's  power  before  letters 

issue. 

53.  Similarity  of  powers. 


CHAPTER  IV. 


EXECUTORS  AND  ADMINISTRATORS. 


i  54.  Different  kinds. 

55.  Special    administrator    where    is 

delay. 

56.  Special  administrator  in  contest 

of  will. 

57.  Powers  of  special  administrator. 

58.  Administrator  of  absentee. 

59.  Same — Powers  of  administrator. 

60.  Same — Presumption  of  death. 

61.  Administrator  dc  bonis  non. 

62.  Same — There  must  be  a  vacancy. 

63.  Same — There  must  be  assets. 

64.  Same — Time    within    which    ap- 

pointment may  be  made. 

65.  Same — Devastavit  of  former  ad- 

ministrator. 


§  66.  Same — Right  to  sue. 
67.  Same — Admissions. 

Same — Appointment    after    final 

settlement. 
Executor  de  son  tort. 
Same — The  statute. 
Same — Statute  construed. 
72.  Same — Statute  construed. 
72).  Same — Intermeddlers'   rights. 
Same — Rights  of  widow. 
Joint  executors  and  administra- 
tors. 
Same — Joint  liability,  etc. 
Same — Actions  by  and  against. 
78.  Administrators       in       case       of 
wrongful  death. 


68. 

69. 
70. 
71. 


74. 
75. 

76. 

77. 


TABLE    OF    CONTENTS. 

CHAPTER  V. 


Vll 


FOREIGN  EXECUTORS  AND  ADMINISTRATORS. 


§  19.  Defining  foreign  administration. 

80.  Rights  of  foreign  executors. 

81.  Right  to  bring  suits. 

82.  Same  subject. 

^2).  Right  and  title  to  property. 


§  84.  Allowance   of   claim    in    foreign 
jurisdiction. 

85.  Same — Effect  of  on  real  estate. 

86.  Right  to  sell  real  estate. 

87.  Same  continued. 

88.  Same — Bond  required. 


CHAPTER  VI. 


BONDS  OF  EXECUTORS  AND  ADMINISTRATORS. 


89.  The  subject  generally. 

90.  What  fund  primarily  secured. 

91.  First  or  general  bond. 

92.  What  this  bond  covers. 

93.  Separate  bonds. 

94.  To  whom  bonds  payable. 

95.  Bond  valid,  when. 

96.  When    additional   bond   may   be 

ordered. 

97.  Liability    of    sureties ;    effect    of 

new  bond. 

98.  When    principal    liable    in    some 

other  capacity. 


§    99.  Bonding  companies  as  sureties. 

100.  Bond  required  on  application  to 

sell  real  estate. 

101.  Such    bond    a    prerequisite    to 

sale. 

102.  Approval  and  custody  of  bonds. 

103.  New  bond  required  on  destruc- 

tion of  old. 

104.  Validity  not  affected. 

105.  Release  of  sureties. 

106.  Statute  remedial. 

107.  Bonds     of     foreign     executors, 

etc. 


CHAPTER  Vn. 


LIABILITY  OF  ADMINISTRATORS,  ETC. SUITS  ON  BONDS. 


108.  Personal  liability. 

109.  Liability  for  conversion. 

110.  Liability  for  waste. 

111.  To  avoid  liability   officer   must 

be  diligent. 

112.  Suits      on     bonds — For     what 

causes. 

113.  Same — Averments      and      evi- 

dence. 

114.  Same — Duty  as  to  surpfus. 


§  115.  By      whom      suits      may      be 
brought. 

116.  Same — Continued. 

117.  Defenses  to  suits. 

118.  Same — Right  to  counterclaim. 

119.  Measure  of  damages  in  suit  on 

bond. 

120.  Judgment     without     relief     or 

stay  of  execution. 


Vlll 


TABLE    OF    CONTENTS. 

CHAPTER  VIII. 


REVOCATION   OF   LETTERS  AND  REMOVAL. 


§  121.  Letters  not  subject  to  collateral     §  132. 
attack. 

122.  Authority  how  terminated.  133. 

123.  Right  of  resignation.  134. 

124.  Who  may  apply  and  for  what 

causes.  135. 

125.  Same — Statute  construed.  136. 

126.  Where  letters  have  been  issued 

out  of  statutory  order.  137. 

127.  Causes  for  removal — Neglect  to        138. 

file  inventory. 

128.  Same — Drunkenness     and     im-        139. 

becility.  140. 

129.  Same — For      failure      to      give        141. 

bond,  or  to  account. 

130.  Same — Non-residence.  142. 

131.  Same — Effect  of  marriage. 


Application  for  removal — No- 
tice, etc. 

Same — Notice  by  publication. 

Who  may  move  for  revocation 
or  removal. 

Defenses  to  application. 

Hearing  on  application  —  No 
jury. 

Same  continued. 

The  hearing  a  summary  pro- 
ceeding— No  change  of  venue. 

Judgment,  costs,  appeals,  etc. 

Effect  of  removal. 

Intermeddling  and  embezzle- 
ment after  removal. 

Acts  legalized. 


CHAPTER  IX. 


DISPOSITION  OF  PERSONAL  PROPERTY. 


143.  What  are  assets. 

144.  What  property  charged. 

145.  Same — As  to  emblements. 

146.  Same — As  to  fixtures. 

147.  Same — As  to  rents. 

148.  Same — As     to     interest     and 

profits. 

149.  Same — As  to  choses  in  action, 

money,  stocks,  etc. 

150.  Same — Property       fraudulently 

conveyed. 

151.  Mortgages    as    personal    prop- 

erty. 

152.  Same — Common-law   rule. 

153.  Contracts    in    consideration    of 

marriage. 

154.  Title   to   and   power   over  per- 

sonal property. 


§  155.  Same — As  to  promissory  notes, 
debts,  etc. 

156.  Same — Right  to  sue. 

157.  The    inventory    and    appraise- 

ment. 

158.  Inventory,      statutory     require- 

ments. 

159.  What  the  inventory  should  in- 

clude. 

160.  When  and  by  whom  inventory 

must  be  filed. 

161.  Separate  and  additional  inven- 

tories. 

162.  What  shall  be  omitted. 

163.  Appraisers,    their    appointment 

and  duties. 

164.  The  widow's  selection. 

165.  Same — Statute  construed. 


TABLE    OF    CONTENTS. 


IX 


166.  Same — Effect  of  a  will. 

167.  Same — Widow     may     maintain 

action  for. 

168.  Return  of  the  inventory. 

169.  Examination  and  approval. 

170.  Sale     of     personal     property — 

When  made. 

171.  Postponement  of  the  sale. 

172.  When  notice  of  sale  required. 

173.  Terms  of  public  sale. 

174.  Sale  bills  and  sale  clerk. 

175.  Personal    property    at    private 

sale. 

176.  Such    sale    must    comply    with 

the  order. 


§  177.  Report  of  private  sale. 

178.  When  sale  may  be  vacated. 

179.  Sale  of  corporation  stock. 

180.  Sale  of  written  contracts. 

181.  Sale  of  contracts  for  land. 

182.  Same — Assignment,       sale       of 

part,  bond. 

183.  Disposition    of    worthless    sale 

notes. 

184.  Same — Who  may  sue,  etc. 

185.  Disposition  of  desperate  debts. 

186.  Collection    of     debts     and     de- 

mands. 

187.  Persons  concealing  goods. 

188.  Executor  may  administer  oaths. 


CHAPTER  X. 


DISPOSITION  OF  REAL  PROPERTY. 


189.  Real  estate  liable  for  debts.  §  205. 

190.  Possession  of  real  estate.  206. 

191.  Sale  without  an  order  of  court.  207. 

192.  Sales  under  a  will— Statutes.  208. 

193.  Same — When  will  does  not  con-  209. 

fer  power. 

194.  Exercise    of   power  by   one    of  210. 

two  executors.  211. 

195.  Sale    to    pay    debts,    when    al-  212. 

lowed. 

196.  Same — Marshaling  assets.  213. 

197.  Conveyance  by  heir  or  devisee,  214. 

effect  of.  215. 

198.  Alay    redeem    land,    may    lease  216. 

when.  217. 

199.  What  real  estate  liable  to  sale.  218. 

200.  Property  fraudulently  conveyed  219. 

by  decedent.  220. 

201.  Same — Suit  by  creditor. 

202.  Same — When      suit     must     be  221. 

brought.  222. 

203.  Who   may   apply    to    sell    land, 

and  when.  223. 

204.  Requisites      of      petition  —  The  224, 

statute.  225, 


Who  should  be  made  parties. 

What  issues  petition  tenders. 

The  proceeding  sui  generis. 

Petition  by  creditor. 

What  is  necessary  to  jurisdic- 
tion. 

What  notice  required. 

When  notice  may  be  waived. 

Minor  defendants,  guardian  ad 
litem. 

Hearing  on  the  petition. 

The  order  of  sale. 

Order  carried  out  by  successor. 

Inventory  and  appraisement. 

Bond  for  sale  of  real  estate. 

The  interest  of  the  widow. 

Same — The  statute. 

Same — When  the  interest  may 
be  sold. 

Same — Sale  to  pay  liens. 

Same — Setting  off  the  widow's 
interest. 

Same — Right  of  election. 

The  interest  of  the  widower. 

As  to  liens  on  the  real  estate. 


TABLE   OF    CONTENTS. 


!226.  ^Mortgages  on  the  real  estate. 

227.  Mortgagee's  right  to  file  claim. 

228.  Proceedings     to     enforce     lien 

suspended. 

229.  Same — Statute    construed. 

230.  Bond  to  secure  payment  of  lien 

after  sale. 

231.  As  to  mortgage  by  an  heir. 

232.  The  sale,  how  made,  etc. 

233.  Sale  may  be  on  credit. 

234.  Notice  of  the  sale  to  be  given. 

235.  Representations  by  an  adminis- 

trator or  executor. 

236.  Purchase    by,  executor    or    ad- 

ministrator. 

237.  Such    sale    void    or    voidable, 

limitation,  resale,  etc. 


§  238.  Report  and  confirmation  of  sale. 

239.  The  deed  and  its  approval. 

240.  When  a  resale  may  be  had. 

241.  Setting  sale  aside  on  account  of 

defects. 

242.  Same— Time   within   which   ac- 

tion must  be  brought. 

243.  Same — When  heirs  estopped. 

244.  Mortgage  and  lease  of  real  es- 

tate. 

245.  Giving  bond  to  prevent  sale,  etc. 

246.  Preventing     sale     and    barring 

claims. 

247.  Conveyance    upon    title    bond, 
the  statute. 

248.  Same — Statute   construed. 

249.  Legalizing  act. 


CHAPTER  XL 


CLAIMS  AGAINST  ESTATES. 


250.  Common-law  liability  of  exec-     §  264. 

utors  and  administrators. 

251.  Lien  of  the  decedent's  debts.  265. 

252.  The     order     in     which     assets 

shall  be  applied.  266. 

253.  Necessity     of     notice     of     ap-       267. 

pointment.  268. 

254.  Time     and     method     of     filing 

claims.  269. 

255.  Claim  must  be  verified  by  affi-        270. 

davit. 

256.  What  claims  must  be  filed.  271. 

257.  Claims  not  due  must  be  filed. 

258.  When     claims     shall     be     pre-        272. 

sented. 

259.  Claims    must    be    filed    before       273. 

final  settlement. 

260.  The  statement  of  the  claim.  274. 

261.  When    estate    liable    on    cove-       275. 

nants.  276. 

262.  Contingent  claims.  277. 

263.  Charging    estate    with    services       278. 

rendered  decedent. 


Agreements  to  leave  property 
by  will. 

Disposition  of  claims  founded 
on  joint  contracts. 

When   decedent   is   co-surety. 

Duty  of  clerk  as  to  claims,  etc. 

Duty  of  executor  or  adminis- 
trator as  to  claims. 

Same — Continued. 

Effect  of  allowance  by  execu- 
tor or  administrator. 

Claim  of  executor  or  adminis- 
trator— How  allowed. 

Interested  parties  may  resist 
allowance. 

Proceedings  when  claim  not  al- 
lowed. 

Practice  on  transfer  of  claim. 

Pleadings  on  transfer  of  claim. 

Pleading  special  defenses. 

Set-off  and  counter-claim. 

Claim  based  on  note — Attorney 
fees. 


TABLE    OF    CONTENTS. 


XI 


§279.  Widow    and    heirs    not    neces- 
sary parties. 

280.  The  trial  of  claims. 

281.  Liability  of   executors   and  ad- 

ministrators  on   their   prom- 
ises. 


§282.  Form    and    effect   of   judgment 
rendered  on  claim. 

283.  No  execution  on  judgment  of 

allowance. 

284.  Proceedings  after  judgment. 


CHAPTER  XII. 


PAYMENT  OF  CLAIMS  AND  EXPENSES. 


§  285.  The  payment  of  claims  and  lia- 
bilities. 

286.  Order  of  priority. 

287.  The    expenses    of    administra- 

tion. 

288.  Debts     due     to     the     United 

States. 

289.  Payment  of  funeral  expenses. 

290.  Expenses  of  last  sickness. 

291.  The  pajment  of  taxes. 


§292.  The  widow's  allowance. 

293.  Payment    of    judgments,    mort- 

gages and  other  liens. 

294.  Payment  by  order. 

295.  Penalty  for  delaying  payment. 

296.  Interest  on  claims. 

297.  Payment  of  money  into  court 
297a.  Payment  to  heirs,  etc.,  before 

final  settlement. 


CHAPTER  XIII. 


ACCOUNTING  AND  SETTLEMENT. 


298.  Power  to  compel  accounts. 

299.  What  must  be  accounted  for. 

300.  When  liable  for  money  depos- 

ited. 

301.  Not    chargeable    with    loss    by 

casualty,  etc. 

302.  Liability  of  executor,   etc.,    for 

interest. 

303.  The    first    account,     what    the 

statute  requires. 

304.  Notice  of  a  hearing  on  the  ac- 

count. 

305.  The  hearing  and  order. 

306.  Accounts     by    joint     executors 

and  administrators. 

307.  Filing  further  accounts. 


308.  Efifect   of   approval    of   current 

report. 

309.  Vouchers  must  be  filed. 

310.  When  the  court  may  order  final 

settlement. 

311.  Allowance      for      compensation 

for  services. 

312.  Compensation  allowed  by  will. 

313.  Allowance  for  attorney  fees. 

314.  Settlement    on   resignation,    re- 

moval, etc. 

315.  The  account  in  final  settlement. 

316.  The    time    when    final    account 

shall  be  filed. 

317.  No  final  settlement  with  claim 

pending. 


Xll 


TABLE    OF    CONTENTS. 


§  318.  Notice  of  final  settlement. 

319.  Contesting  the  report. 

320.  The  order  of  final  settlement. 

321.  Re-opening     or     setting     aside 

final  settlements. 

322.  Same — Party  must  show  inter- 

est. 


323.  Same — For  what  causes. 

324.  Same — Limitation  to  action. 

325.  Same — Only  set  aside  in  direct 

proceeding. 
325a.  Accounting  by  trustees  of  be- 
nevolent devise. 


CHAPTER  XIV. 


DISTRIBUTION PAYMENT  OF  LEGACIES DISCHARGE. 


i  326.  Closing  the  administration. 

327.  What  shall  be  distributed. 

328.  When      distribution      shall     be 

made. 

329.  Distribution  to  the  widow. 

330.  The    rights    of    heirs    or    dis- 

tributees. 

331.  Right  of  set-off  to  legacies  and 

distributive  shares. 

332.  The  rules  of  distribution. 

333.  Distribution  to  the  widower. 

334.  Kindred  of  the  half-blood. 

335.  Illegitimates,  and  adopted  chil- 

dren. 

336.  Charging  advancements. 

337.  Advancements,    how    reckoned, 

the  statute. 

338.  Advancements     in     testate     es- 

tates. 

339.  As    to    the    order    of    distribu- 

tion. 

340.  .^s   to   shares   of  minors   with- 

out guardian. 


§  341.  Court  may   order  bond   to   re- 
fund. 

342.  Payment     before     final     settle- 

ment. 

343.  The  payment  of  legacies. 

344.  Legatee's  title — Executor's  con- 

sent. 

345.  As  to  void  and  lapsed  legacies. 

346.  Different  kinds  of  legacies. 

347.  Out  of  what  fund  legacies  to  be 

paid. 

348.  Interest  on  legacies. 

349.  Ademption   and   satisfaction   of 

legacies. 

350.  Legacy  to  creditor. 

351.  When   legatee   a   minor — Exec- 

utor cannot  purchase. 

352.  The  order  of  discharge. 

353.  Distribution    of    real    estate    of 

unknown  heirs. 

354.  Same  —  Notice  —  Appearance 

— Disposition  of  money,  etc. 

355.  Same — A  species  of  escheat. 


CHAPTER  XV. 


ESTATES  UNDER  FIVE  HUNDRED  DOLLARS. 


§  356.  Dispensing      with      administra-     §  358.  Petition,     inventory     and     ap- 
tion.  praisement. 

357.  Policy  of  the  statute.  359.  Notice,  hearing  and  decree. 


TABLE    OF    CONTENTS. 


Xlll 


§  360.  Contest     by     creditors,      reap-  §  362.  Lien  of  chattel  mortgage, 

praisement.  363.  Lien  of  judgment,  etc. 

36L  Issuing    of    certificate — Its    ef-  364.  Suits  by  widow, 
feet. 

CHAPTER  XVI. 

SETTLEMENT  OF  INSOLVENT  ESTATES. 


I  365.  As  to  insolvent  estates. 

366.  The  petition  and  its  contents. 

367.  Order  and  notice. 

368.  Effect  of  order  on  claims  dur- 

ing year. 

369.  Partial  settlement. 

370.  Payment  of  liens. 

371.  As  to  set-off  against  liens. 

372.  Sale     of     real     estate — Petition 

pending. 


§  373.  Filing  petition,  etc. 

374.  As  to  liens  on  real  estate. 

375.  Claim,    filed    after    partial    dis- 

tribution. 

376.  Final    settlement  —  Uncollected 

assets. 

377.  Same-^Claim  pending. 

378.  Same — Claim  of  surety. 

379.  Notice  of  final  settlement. 


CHAPTER  XVH. 


LIABILITY  OF  HEIRS,  DEVISEES  AND  DISTRIBUTEES. 


§  380.  Common-law  liability. 

381.  When  liable  and  to  whom. 

382.  An  administration  necessary. 

383.  When    suit    must    be    brought, 

and  how. 

384.  Damages    for   breach    of   cove- 

nant. 


§  385.  To  what  extent  heir,  etc.,  liable, 

386.  As  to  parties  to  the  action. 

387.  Judgment  or  decree  and  its  en- 

forcement. 

388.  When    judgment    may    be    an-' 

nulled. 


CHAPTER  XVni. 


SUITS  BY  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS. 


§  389.  Suits  against. 

390.  Same — On  individual  promise. 

391.  Liability  for  torts. 

392.  Power  to  maintain  suits. 

393.  Right   to    sue   on    notes,    mort- 

gages, etc. 

394.  Right  to  sue  on  covenants. 


§  395.  Evidence    of    power    to    sue— 
Pleadings,  copy  of  letters,  etc. 

396.  Survival  of  actions. 

397.  Limitation  of  actions. 

398.  Joinder     of     causes — Right     of 

third  person  to  sue. 


XIV 


TABLE    OF    CONTENTS. 


§  399.  Actions    for    injuries    resulting 
in  death. 

400.  Same — Administrator's  right. 

401.  Construing  statutes  together. 

402.  The   damages,   and  how   meas- 

ured. 

403.  Distribution  of  the  damages. 

404.  Right  of  set-off. 


§  405.  Judgments     against    executors, 
etc, 

406.  Proceedings  after  judgment. 

407.  Effect    of    death    of    party    to 

judgment. 

408.  Proceedings  —  How     long     de- 

layed. 

409.  Revivor  of  judgment. 

410.  Liability  for  costs. 


CHAPTER  XIX. 


COMPETENCY  OF  WITNESSES. 


r411.  The    common-law    rule    as    to 
parties. 

412.  The  rule  in  Indiana. 

413.  When  executor  or  administra- 

tor a  party. 

414.  Same — Adverse  interest. 

415.  In  case  of  joint  interest. 

416.  As  to  admissions  and  declara- 

tions. 

417.  Cases  in  which  statute  does  not 

apply. 

418.  Competency  in  contest  of  wills. 

419.  When    heirs    or    devisees    are 

parties. 


§  420.  The     statutes     construed     to- 
gether. 

421.  As  to   testimony  of  decedent's 

agent. 

422.  When  assignor  or  grantee  ex- 

cluded. 

423.  When   executors   and   adminis- 

trators are  defendants, 

424.  Adverse  party  required  to  tes- 

tify, 

425.  Unjust  claim — Claimant's  testi- 

mony. 


CHAPTER  XX. 


APPEALS  IN  PROBATE  MATTERS. 


i  426.  Right   of   appeal   wholly   statu- 
tory. 

427.  The  purpose  of  the  statute. 

428.  When  appeals  should  be  taken 

under  the  civil  code. 

429.  To  what  court  appeals  must  be 

taken. 


§  430.  As  to  parties  to  appeal. 

431.  Time  for  perfecting  appeals. 

432.  Appeals  in  certain  cases. 

433.  When  an  appeal  bond  must  be 

filed. 

434.  Right  of  appeal  without  bond. 

435.  Review  of  judgment. 


TABLE    OF    CONTENTS. 

CHAPTER  XXL 


XV 


LIABILITY  OF  ESTATES  FOR  TAXES. 


436.  Liability  for  decedent's  taxes. 

437.  Where  should  be  assessed,  etc. 

438.  Estates  in  hands  of  guardians, 

etc. 

439.  Location  of  the  property. 

440.  Statement,    interrogatories,    etc. 


§  44L  Payment  of  taxes. 

442.  When  taxes  should  be  paid. 

443.  Sale  of  property  for  taxes. 

444.  Redemption  from  sale. 

445.  Proceedings     when     purchaser 

dies. 


CHAPTER  XXn. 


SURVIVING  PARTNERS. 


446.  The    partnership    dissolved    by 

death. 

447.  Rights    of    the    surviving   part- 

ner. 

448.  The  liabilities  and  powers  of  a 

surviving  partner. 

449.  Right  to  make  assignment  for 

the  benefit  of  creditors. 

450.  As  against  personal  representa- 

tive of  deceased  partner. 
45L  Rights    of    the   personal    repre- 
sentative. 

452.  The    survivor's    power    of    dis- 

position. 

453.  Survivor's  right  to  purchase. 

454.  Effect    on   partnership    real   es- 

tate. 


§  455.  Right  of  partnership  creditors. 

456.  Actions  by  and  against  surviv- 

ing partner. 

457.  As  to  heirs  of  a  deceased  part- 

ner. 

458.  Statutory  administration. 

459.  Required  to  file  inventory  and 

appraisement. 

460.  Must  file  list  of  liabilities,  affi- 

davits, etc. 

461.  Bond  and  sureties. 

462.  Settlement  and   distribution. 

463.  Compensation  to  the  surviving 

partner. 

464.  When     receiver     may     be     ap- 

pointed. 


TITLE  TWO 

WILLS 

CHAPTER  XXni. 


EXECUTION,  REVOCATION  AND  PROBATE. 


I  465.  The  subject  generally. 

466.  Who  may  make  a  will. 

467.  Power    of    married    woman    to 

make  a  will. 


468.  Persons  of  unsound  mind. 

469.  Infants  and  aliens. 

470.  Joint  and  mutual  wills. 

47L  Suggestions  for  drawing  wills. 


XVI 


TABLE   OF    CONTENTS. 


472.  Objects  of  testator's  bounty. 

473.  Who  may  be  a  beneficiary. 

474.  Bequest  or  devise  to  charitable 

uses. 

475.  Execution    and    attestation    of 

will. 

476.  Nuncupative  w^ills. 

477.  The  statute  construed. 

478.  Such  wills  by  soldiers  and  sail- 

ors. 

479.  Instruments   of  a  testamentary 

character. 

480.  Revocation  of  wills. 

481.  Revocation  by  birth  of  a  child. 

482.  Effect  of  child's  death. 

483.  When  marriage  a  revocation. 

484.  What  is  not  deemed  a  revoca- 

tion. 

485.  Effect  of  a  partial  divesting  of 

title. 


§  486.  Republication  of  wills. 

487.  Probate  of  wills. 

488.  Objections  to  probate. 

489.  What  must  be  probated. 

490.  When  probated. 

491.  Custody  and  production  of  the 

will. 
Proof  of  the  will. 
Proof  by  depositions. 

494.  Preservation      and      effect      of 

proof. 

495.  Probating  wills  of  absentees. 

496.  The  effect  of  probate. 

497.  Certificate  of  probate. 

498.  Record  and  probate  of  foreign 

wills. 

499.  Lost  wills,  how  established. 

500.  The  degree  of  proof  required. 

501.  Decree  to  be  recorded. 


492. 
493. 


CHAPTER  XXIV. 


CONSTRUCTION  OF  WILLS. 


502.  General  rules  in  regard  to  con- 

struction, etc. 

503.  Rules  as  to  intention. 

504.  Rules  as  to  repugnancy. 

505.  Rules  for  supplying  words. 

506.  As  to  extrinsic  evidence. 

507.  As  to  parol  evidence. 

508.  Miscellaneous  rules. 

509.  Rule  as  to  personal  property. 

510.  As  to  precatory  words. 

511.  Declarations  of  the  testator. 

512.  Terms  descriptive  of  classes. 

513.  Disinheritance  of  heirs. 


!  514.  Passes  the  entire  estate,  when. 

515.  Conditions  in  restraint  of  mar- 

riage. 

516.  When  a  devise  shall  not  lapse. 

517.  A  devise  of  rents  and  profits. 

518.  The  rule  in  Shelley's  case. 

519.  Exception  to  the  rule. 

520.  The  estate  liable  for  debts. 

521.  When  legacies  a  charge. 

522.  Rights  of  husband  and  wife. 

523.  When  devise  passes  fee  simple. 

524.  Vested  estates — Remainders. 


CHAPTER  XXV. 


CONTEST    OF    WILLS. 


525.  Who  may  contest. 

526.  Where  contested. 


§  527.  Contest   of   will   after   its   pro- 
bate. 


TABLE    OF    CONTENTS. 


XVll 


!  528.  As  to  undue  influence. 

529.  As  to  unsoundness  of  mind. 

530.  The  statute  only  cumulative. 

531.  Who  may  sue  to  construe  will. 

532.  Pleading    and    practice    in    ac- 

tions to  contest. 

533.  When  contestant  estopped. 

534.  Time  within  which  action  must 

be  brought. 

535.  Contestor  must  file  bond. 


§  536.  Notice  and  hearing  of  action. 

537.  Trial — May  be  by  jury. 

538.  The  evidence. 

539.  Proof  of  declaration. 

540.  Opinion  evidence. 

541.  Contest  of  foreign  wills. 

542.  Decree  of  court,  its  effect,  costs, 

etc. 

543.  Appeals. 


TITLE  ONE 

SETTLEMENT   OF   ESTATES 


CHAPTER  I 

JURISDICTION 

§  1.  What  is  jurisdiction.  §  H.  Power  of  judges  in  vacation. 

2.  What  courts  have  jurisdiction.  12.  Powers  of  the  clerk  in  vacation. 

3.  Concurrent  jurisdiction.  13.  Probate    courts    are    courts    of 

4.  Transfer  of  jurisdiction.  record. 

5.  Marion  county  probate  court.  14.  What  books  to  be  kept. 

6.  To  what  jurisdiction  is  limited.  15.  Jurisdiction  of  justices   of  the 

7.  Equitable    jurisdiction    of    pro-  peace. 

bate  courts.  16.     Probate  commissioners. 

8.  Jurisdiction  as  afifected  by  dom-       17.     Oath  and  term  of  office. 

icile.  18.     Powers  and  duties. 

9.  Jurisdiction   as   affected  by  as-       19.     Rules  and  their  enforcement. 

sets.  20.     Suspension  of  commissioner. 

10.     Jurisdiction  when  judge  inter- 
ested in  estate. 

§  1.  What  is  jurisdiction. — Jurisdiction  to  settle  the  estate 
of  a  deceased  person  depends  on  the  domicile  of  the  decedent  at 
his  death,  or  upon  the  situs  of  his  property. 

But  as  between  the  several  courts  of  the  state  in  which  the  in- 
testate is  domiciled,  jurisdiction  attaches  primarily  to  that  court 
which  is  invested  with  probate  power  for  the  county  which  in- 
cludes the  decedent's  domicile  at  the  time  of  his  death,  without 
regard  to  the  place  of  his  death  or  the  situs  of  his  property.^ 

The  power  to  hear  and  determine  a  cause  is  jurisdiction ;  it  is 
coram  judice  whenever  a  cause  is  presented  which  brings  this 
power  into  action.    Jurisdiction  is  the  power  to  hear  and  deter- 

^Woerner  Law  Admin.,  p.  439. 


1 — Pro.  Law. 


INDIANA    PROBATE    LAW. 


mine  the  subject-matter  in  controversy  between  parties  to  a  suit; 
to  adjudicate  or  exercise  judicial  power  over  them." 

In  courts  of  general  or  superior  jurisdiction,  the  right  to  juris- 
diction is  a  presumption  of  the  law  in  favor  of  such  courts ;  but  in 
courts  of  limited  or  inferior  jurisdiction,  no  such  presumption  ex- 
ists, and  all  the  facts  necessary  to  give  such  courts  jurisdiction  in 
any  particular  matter  must  appear  upon  the  face  of  the  proceed- 
ings, or  no  valid  judgment  can  be  rendered.^ 


"United  States  v.  Arredondo,  6  Pet. 
(U.  S.)  691,  8  L.  ed.  547;  Doe  v. 
Smith,  1  Ind.  451;  Nesbit  v.  Miller, 
125  Ind.  106,  25  N.  E.  148 ;  Rhode  Is- 
land V.  Massachusetts,  12  Pet.  (U.  S.) 
657,  9  L.  ed.  1233;  Smith  v.  Myers, 
109  Ind.  1,  9  N.  E.  692,  58  Am.  Rep. 
375;  Robertson  v.  State,  109  Ind.  79, 
10  N.  E.  582,  643.  "Two  things  are 
absolutely  essential  to  the  power  of  a 
court  to  decide  a  legal  controversy, 
jurisdiction  of  the  subject-matter  and 
jurisdiction  of  the  person.  Both  must 
exist ;  otherwise  it  is  the  imperative 
duty  of  the  court  to  decline  to  do 
more  than  ascertain  and  declare  that 
it  has  no  power  to  examine  or  decide 
the  merits  of  the  controversy."  "Ju- 
risdiction is  the  right  to  pronounce 
judgment  acquired  through  due  pro- 
cess of  law."  Herman  Estop,  and 
Res  Judicata,  §  69.  "Jurisdiction  is 
authority  to  hear  and  determine." 
Herman  Estop,  and  Res  Judicata,  § 
IZ.  Mills  v.  Commonwealth,  13  Pa. 
St.  627;  Hopkins  v.  Commonwealth,  3 
Mete.  (Mass.)  460;  Osborn  v.  Bank 
of  United  States,  9  Wheat.  (U.  S.) 
738,  6  L.  ed.  204;  In  re  School- 
Law  Manual,  63  N.  H.  574,  4  Atl.  878; 
Withers  v.  Patterson,  27  Tex.  491,  86 
Am.  Dec.  643;  Quarl  v.  Abbett,  102 
Ind.  233,  1  N.  E.  476,  52  Am.  Rep. 
662n.  "The  authority  to  hear  and  de- 
termine a  cause  is  jurisdiction  to  try 
and   decide    all   of   the   questions    in- 


volved in  the  controversy.  This  prin- 
ciple is  an  ancient  one,  and  even  in 
the  time  when  the  contest  between  the 
chancery  courts  and  common-law 
courts  was  hot  and  angry,  it  was  rec- 
ognized and  enforced.  Where  the 
jurisdiction  over  the  court  once  at- 
taches it  extends  over  the  whole  case, 
and  the  court  will  determine  all  ques- 
tions necessary  to  a  full  adjudication 
of  the  controversy.  Field  v.  Holz- 
man,  93  Ind.  205 ;  Carmichael  v. 
Adams,  91  Ind.  526;  1  Pomeroy,  Eq. 
Juris.,  §  231."  See,  also,  Lantz  v  jMaf- 
fett,  102  Ind.  23,  26  N.  E.  195. 

'Ex  parte  Watkins,  3  Pet.  (U.  S.) 
193,  7  L.  ed.  650 ;  Clay  County  v.  Mar- 
kle,  46  Ind.  96;  Jackson  v.  State,  104 
Ind.  516,  3  N.  E.  863;  Crossley  v. 
O'Brien,  24  Ind.  325,  87  Am.  Dec. 
329;  Pendleton  &c.  Tpk.  Co.  v.  Bar- 
nard, 40  Ind.  146;  Cooper  v.  Sunder- 
land, 3  Iowa  114,  66  Am.  Dec.  52; 
Clay  County  v.  Markle,  46  Ind.  96. 
"The  proposition  that  'the  rule  for 
jurisdiction  is,  that  nothing  shall  be 
intended  to  be  out  of  the  jurisdiction 
of  a  superior  court,  but  that  which 
specially  appears  to  be  so;  and  on  the 
contrary,  nothing  shall  be  intended  to 
be  within  the  jurisdiction  of  an  in- 
ferior court  but  that  which  is  so  ex- 
pressly alleged;'  (Peacock  v.  Bell,  1 
Saund.  73)  so  the  rule  that  'when  the 
jurisdiction  of  an  inferior  court  de- 
pends upon  a  fact  which  such  court  is 


§    2  JURISDICTION.  3 

Any  movement  of  a  court  is  necessarily  jurisdiction.*  And  a 
court  having  general  probate  jurisdiction  is  a  court  of  superior 
jurisdiction.^ 

§  2.  What  courts  have  jurisdiction. — Where  a  man  dies, 
leaving  personal  property,  his  estate  is  administered  and  distrib- 
uted under  the  supervision  of  some  local  court  whose  jurisdiction 
is  confined  in  whole  or  in  part  to  such  matters.  Courts  whose 
jurisdiction  is  confined  wholly  to  matters  of  probate,  and  to  ad- 
ministration of  decedents'  estates,  are  probate  courts. 

Courts  of  probate  jurisdiction  only  do  not  exist  in  this  state, 
although  the  need  of  such  courts  is  apparent  to  those  who  do  much 
probate  business. 

In  this  state  probate  jurisdiction  is  conferred  upon  the  circuit 
courts  as  part  of  their  general  jurisdiction.  The  statute  provides 
that  the  circuit  courts  of  this  state  shall  have  exclusive  original 
jurisdiction  of  all  matters  relating  to  the  probate  and  contest  of 
last  wills  and  testaments,  the  granting  of  letters  testamentary  and 
of  administration,  and  the  settlement  and  distribution  of  dece- 
dents' estates.    The  court  granting  the  letters  shall  have  exclusive 

required  to  ascertain  and  settle  by  its  of  the  jurisdiction  granted  to  them, 

decision,  such  decision  is  conclusive/  they  are  invested  with  the  incidental 

is  as  well  established.    Evansville  &c.  powers    of   other   courts   of   law   and 

R.  Co.  V.  City  of  Evansville,  15  Ind.  equity."    In  Sims  v.  Gay,  109  Ind.  501, 

395."  9  N.  E.  120,  the  court  had  under  con- 

*  Clay  County  v.  Markle,  46  Ind.  96 ;  sideration  the  question  as  to  the  suf- 

Dequindre  v.  Williams,  31  Ind.  444.  ficiency  of   notice   to   an  heir  in   the 

°  Doe  V.  Smith,  1  Ind.  451 ;  Powell  sale  of  lands  by  an  executor,  and  the 

v.    North,   3    Ind.    392,    56  Am.    Dec.  court    said:      "But    there    are    other 

513n ;  Sims  v.  Gay,  109  Ind.  501,  9  N.  rules  which  apply  here.    One  of  them 

E.  120.    "All  the  courts  of  the  state,  is   thus   stated:     'Where   a  court  of 

from    which    an    appeal    or    writ    of  general  jurisdiction  assumes  jurisdic- 

error  lies,  are  inferior  courts  in  one  tion,  the  existence  of  all  facts  neces- 

sense,  inasmuch  as  their  decisions  are  sary  to   confer  jurisdiction   are   pre- 

subject  to  be  reviewed  and  reversed  sumed   to   exist.'"    Jackson  v.    State, 

by   the    appellate    tribunal,    and   their  104     Ind.    516,    3     N.     E.    863,    and 

jurisdiction  of  the  subject-matters  of  cases    cited;    Albertson    v.    State,    95 

suits  is  given  and  limited  by  the  stat-  Ind.  370.     In  Exchange  Bank  v.  Ault, 

ute.    The  probate  courts  are  courts  of  102  Ind.  322,  1  N.  E.  562,  it  was  said : 

record,  and  by  the  act  under  which  "In  considering  such  questions,  every 

they  were  organized,  in  the  exercise  presumption  is  indulged  in   favor  of 


4  INDIANA    PROBATE    LAW.  8    2 

jurisdiction  of  all  matters  touching  the  settlement  and  distribution 
of  the  estate  whereon  said  letters  shall  have  been  granted.^ 

The  circuit  court  also  has  exclusive  jurisdiction  of  the  settle- 
ment of  estates  under  guardianship,  whether  of  minors,  drunk- 
ards, persons  of  unsound  mind,  old,  infirm  or  spendthrifts.  All 
species  of  guardianship  come  within  the  probate  jurisdiction  of 
the  circuit  court. '^ 

The  court  having  probate  jurisdiction  in  each  county  in  term 
time,  or  the  clerk  thereof  in  vacation,  shall  appoint  guardians  of 
minors  resident  in  such  county,  or  having  estate  therein ;  and  in 
case  of  conflict  between  two  appointments  in  different  counties, 
the  one  first  made  shall  exclude  all  others  and  extend  to  all  the 
property  of  the  ward  in  this  state.® 

Courts  having  probate  jurisdiction  also  take  cognizance  of  the 
settlement  of  partnership  affairs  by  a  surviving  partner.^ 

The  jurisdiction  of  the  circuit  courts  in  probate  matters  is 
separate  and  distinct  from  its  general  jurisdiction  in  civil  cases 
and  must  be  exercised  under  different  forms  and  modes,  and  this 
jurisdiction  is  in  all  cases  strictly  statutory.^" 

And  such  probate  jurisdiction,  since  it  has  been  transferred 
from  the  common  pleas  to  the  circuit  courts,  is  still  as  much  a 
separate  and  independent  jurisdiction  as  when  it  was  exercised  by 
the  courts  of  common  pleas. ^^ 

The  circuit  courts  also  have  exclusive  jurisdiction  in  a  proceed- 
ing under  the  statute  to  have  a  person  adjudged  of  unsound  mind 

the  validity  of  the  judgment  or   de-        'Burns'  R.  S.  1908,  §  1433. 
cree  sought  to  be  impeached."    Pick-        'Burns'  R.  S.  1908,  §  3056. 
ering  v.  State,  106  Ind.  228,  6  N.  E.        "  Burns'  R.  S.  1908.  §  9713. 
611,    vide    authorities    cited,    p.    230;        "Noble  v.   McGinnis,  55   Ind.  528; 
Cassady  v.  Miller,  106  Ind.  69,  5  N.  E.  Jcflfersonville  &c.   R.   Co.   v.    Sv^rayne, 
713.  26  Ind.  477.     On  the  transfer  of  pro- 
*  Burns'  R.  S.  1908,  §  2724.    Jewctt  bate    jurisdiction    from    the    common 
V.  Hurrle,  121  Ind.  404,  23  N.  E.  256.  pleas  to  the  circuit  court,  the  practice 
Courts     having    probate    jurisdiction  prevailing   in   the    court    of    common 
have  exclusive  control  of  the  assets  pleas    in    probate    matters    viras    also 
of  the   estate   of  a   decedent  and   no  transferred  to  the  circuit  court.  Alex- 
other    court    can    entertain    jurisdic-  ander  v.  Alexander,  48  Ind.  559. 
tion  to  divert  or  control  such  assets.        "  Noble  v.  McGinnis,  55  Ind.  528. 
Hiatt  v.  Hiatt,  30  Ind.  190. 


§    3  JURISDICTION.  5 

and  for    the  appointment  of  a  guardian  for  such  person  and  his 
estate/^ 

§  3.  Concurrent  jurisdiction. — While  probate  courts  are  in 
a  quahfied  sense  dependent  upon  statute  for  jurisdiction,  yet  like 
other  judicial  tribunals,  they  are  the  offspring  of  the  common 
law.  They  existed  in  England,  in  substance  at  least,  before  the 
church  authorities,  by  their  usurpation  snatched  from  the  crown 
this  rightful  portion  of  its  authority,  and  changed  the  form  and 
mode  of  such  proceedings.  But  whether  probate  jurisdiction  is 
exercised  alone  by  a  court  created  for  that  purpose  or  by  a  court 
exercising  general  jurisdiction,  the  law  relating  thereto  is  a  part 
of  our  system  of  jurisprudence. 

In  the  earlier  history  of  our  state  there  existed  a  system  of 
common  pleas  courts  and  the  act  establishing  such  courts  con- 
ferred upon  them  original  and  exclusive  jurisdiction  in  all  mat- 
ters relating  to  the  probate  of  last  wills  and  testaments,  granting 
letters  testamentary,  of  administration  and  of  guardianship,  and 
of  all  matters  relating  to  the  settlement  and  distribution  of  de- 
decents'  estates  and  the  estates  of  minors ;  all  actions  against  exec- 
utors and  administrators;  actions  to  authorize  guardians  to  sell 
and  convey  real  estate  of  their  wards,  and  the  appointment  of 
guardians  of  persons  of  unsound  mind;  the  examination  and  al- 
lowance of  the  accounts  of  executors  and  administrators,  and  of 
the  guardians  of  minors,  except  where,  in  special  cases,  concur- 
rent jurisdiction  was  given  by  law  to  some  other  court. ^^ 

The  common  pleas  and  circuit  courts  had  concurrent  jurisdic- 
tion in  all  actions  against  heirs,  devisees,  and  sureties  of  execu- 
tors, administrators  and  guardians,  in  the  partition  of  real  es- 
tate, assignment  of  dower,  and  the  appointment  of  a  commis- 
sioner to  execute  a  deed  on  any  title  bond  given  by  a  decedent,  and 

"  Martin  v.  Motsinger,  130  Ind.  555,  in  court  during  the  trial,  or  process 

30  N.  E.  523.     In  order  for  a  circuit  must    have    been    duly    served    upon 

court   to   acquire   jurisdiction   to    ad-  such  person.    Jessup  v.  Jessup,  7  Ind. 

judge  a  person  to  be  of  unsound  mind  App.  573,  34  N.  E.  1017. 
and  to   appoint  a   guardian   for  such        "2  G.  &  H.,  §  4,  p.  20;  Hillenberg 

person,  such  person  must  be  present  v.  Bennett,  88  Ind.  540. 


6  INDIANA    PROBATE    LAW.  g    4 

in  all  cases  where  executors,  administrators  and  guardians  are 
plaintiffs/* 

§  4.  Transfer  of  jurisdiction. — By  an  act  of  INIarch  6.  1873, 
courts  of  common  pleas  were  abolished  in  this  state,  and  their 
jurisdiction  transferred  to  the  circuit  courts/^  By  this  transfer 
the  circuit  courts  now  have  conferred  upon  them  a  probate  juris- 
diction as  original  and  exclusive  as  formerly  belonged  to  the 
courts  of  common  pleas,  and  which  is  still  as  much  an  independ- 
ent jurisdiction  as  when  it  was  exercised  by  the  courts  of  common 
pleas.'"  To  this  point  the  court,  in  the  case  of  Hillenberg  v.  Ben- 
nett, 88  Ind.  540,  on  page  544,  says :  "As  to  actions  of  which  the 
common  pleas  and  circuit  courts  had  concurrent  jurisdiction,  so 
'.hat  they  might  be  brought  and  conducted  in  either  court  with  the 
same  result  in  all  respects,  nothing  was  added  to  the  jurisdiction 
of  the  circuit  court  by  the  statute  abolishing  the  common  pleas; 
but  as  to  all  matters  in  which  the  common  pleas  had  an  exclusive 
or  peculiar  jurisdiction,  that  jurisdiction  was  transferred  and 
added  to  the  jurisdiction  of  the  circuit  court,  and  the  laws  or  parts 
of  laws  which  had  conferred  such  jurisdiction  on  the  common 
pleas  were  continued  in  force,  the  name  of  the  circuit  court  being 
understood  as  substituted  therein  for  that  of  the  common  pleas." 

For  some  time  after  the  abolition  of  common  pleas  courts  ex- 
clusive jurisdiction  in  probate  matters  was  vested  in  the  circuit 
courts,  and  although  the  statute  still  provides  that  circuit  courts 
"shall  have  exclusive  original  jurisdiction"  in  probate  matters, 
the  legislature  has  from  time  to  time  conferred  concurrent  juris- 
diction in  such  matters  in  other  courts  created  by  it. 

It  has  erected  a  prol^ate  court  in  Marion  county/'  and  has  con- 
ferred probate  jurisdiction  upon  the  superior  courts  in  the  coun- 
ties of  Lake,  Porter,  LaPorte,  Elkhart  and  St.  Joseph.'*^  Ex- 
clusive original  jurisdiction  is  given  in  probate  matters  to  the  pro- 
bate court  established  in  Marion  county,  while  the  superior  courts 

"  2  G.  &  H.,  §  5.  p.  20,  §  8,  p.  21.  559 ;  Noble  v.  McGinnis,  55  Ind.  528. 

"Burns'  R.  S.  1894,  §§   1387,  1388.        "Burns'  R.  S.  1908,  §§  1606-1629. 
"Alexander  v.   Alexander,  48  Ind.        "Burns'  R.  S.  1908,  §§  1540,  1575. 


§    5  JURISDICTION.  7 

in  the  counties  above  named  exercise  jurisdiction  concurrent  with 
the  circuit  courts  in  the  above  named  counties. 

§  5.  Marion  county  probate  court. — The  statute  provides 
that  in  all  counties  in  this  state  in  which  is  situated  an  incorpo- 
rated cit}'  with  a  population  of  not  less  than  one  hundred  thou- 
sand inhabitants  there  shall  be  established  a  probate  court.^^ 

So  far  jMarion  county  is  the  only  county  in  the  state  which 
meets  the  requirements  of  the  statute,  and  such  a  court  has  been 
established  in  that  county. 

Such  court  is  given  original  and  exclusive  jurisdiction  in  pro- 
bate matters,  and  concurrent  jurisdiction  with  the  other  courts  in 
that  county  in  certain  other  specified  matters.  The  statute  reads 
as  follows : 

"Said  probate  court  within  and  for  the  county  for  which  it  is 
organized  shall  have  original,  exclusive  jurisdiction  in  all  matters 
pertaining  to  the  administration  and  settlement  of  the  estates 
of  minors,  insane  persons,  habitual  drunkards,  insolvents,  estates 
of  deceased  persons,  assignments,  adoptions  and  surviving  part- 
nerships :  and  shall  have  concurrent  jurisdiction  in  the  following 
matters : 

1.  In  proceedings  in  partition. 

2.  Application  for  the  appointment  of  receivers. 

3.  Application  for  writs  of  habeas  corpus. 

4.  Proceedings  to  resist  probate  of  wills  and  proceedings  to 
contest  wills. 

5.  Complaints  to  construe  wills  and  to  dissolve  trusts. 

6.  Suits  for  divorce  and  for  alimony  and  support. 

7.  All  suits  by  and  against  executors,  administrators,  guard- 
ians, assignees  and  trustees. -° 

Upon  the  organization  of  a  probate  court  in  any  county,  all 
probate  causes  pending  in  the  circuit  court  of  such  county  shall  be 
transferred  to  such  probate  court.  And  all  warrants,  subpoenas, 
rules,  orders  of  court,  and  other  process  which  may  have  issued 
from  the  circuit  court  of  such  county,  in  probate  causes,  shall  be 

""  Burns'  R.  S.  1908,  §  1606.         "-'  Burns'  R.  S.  1908,  §  1615. 


8  INDIANA    PROBATE    LAW.  §    6 

returnable  to  the  probate  court  upon  the  first  day  of  the  first  term 
thereof  to  be  holden ;  and  said  probate  court  shall  have  jurisdic- 
tion thereof,  and  proceed  therein ;  and  all  proceedings  in  probate 
causes  in  said  court  shall  be  conducted  as  proceedings  are  or  may 
be  required,  by  law,  to  be  conducted  in  the  circuit  court  in  coun- 
ties having  no  probate  court."^^ 

§  6.  To  what  the  jurisdiction  is  limited.— From  an  exam- 
ination of  the  above  statutes  it  will  be  seen  that  the  exclusive 
jurisdiction  in  probate  matters  now  conferred  upon  the  courts  is 
limited  to  the  granting  of  letters  testamentary  and  of  administra- 
tion; the  probate  and  contest  of  wills;  and  a  general  supervision 
of  estates  of  decedents,  their  settlement  and  distribution ;  issuing 
letters  of  guardianship;  and  the  control  and  management  of  the 
estates  of  minors,  and  of  persons  of  unsound  mind.  And  all  mat- 
ters touching  decedents'  estates,  wills,  administrators,  executors, 
guardians  and  heirs,  and  all  business  transacted  in  relation  there- 
to, in  such  courts,  must  be  kept  separate  in  proper  books,  prepared 
for  that  purpose,  in  the  same  manner  as  when  the  courts  of  com- 
mon pleas  had  Jhe  exclusive  original  jurisdiction  of  the  probate 
business  of  the  state."" 

§  7.  Equitable  jurisdiction  of  probate  courts. — In  deter- 
mining the  extent  of  probate  jurisdiction  reference  must  usually 
be  had  to  the  statute,  as  the  scope  of  such  jurisdiction  is  limited 
and  prescribed  by  the  statute  creating  it.  In  this  sense  probate 
courts  are  courts  of  limited  jurisdiction. 

A  question,  however,  frequently  arises  as  to  whether  this  juris- 
diction is  so  limited  as  to  exclude  the  exercise  of  any  jurisdiction 
other  than  what  is  found  in  the  statute.  Mr.  Woerner  in  his  work 
on  administrations  says :  "Unless  a  warrant  for  the  exercise  of 
jurisdiction  in  a  particular  case  can  be  found  in  the  statute,  given 
either  expressly  or  by  implication,  the  whole  proceeding  is  void ; 
but  where  jurisdiction  is  conferred  over  any  subject-matter,  and 
it  becomes  necessary  in  the  adjudication  thereof  to  decide  col- 

=>  Burns*  R.  S.  1908,  §  1616.  -^  Noble  v.  McGinnis,  55  Ind.  528. 


§7 


JURISDICTION. 


lateral  matters  over  which  no  jurisdiction  has  been  conferred  the 
court  must  of  necessity  decide  such  collateral  issues."^^ 

The  doctrine  was  early  announced  in  this  state  that  our  pro- 
bate courts  possess  general  equity  powers  in  relation  to  the  ad- 
ministration and  guardianship  of  estates.--'  And  this  doctrine  has 
been  adhered  to.  The  Supreme  Court,  in  Galvin  v.  Britton,  151 
Ind.,  on  page  11,  says:  "That  the  circuit  courts  of  this  state  in 
the  exercise  of  their  probate  jurisdiction  and  powers  with  which 
they  are  invested  by  statute  in  respect  to  the  estates  of  decedents, 
have  the  right  or  power,  when  the  necessity  of  the  case  demands, 
to  determine  either  legal  or  equitable  questions,  when  they  are 
properly  presented,  or  arise  in  the  course  of  probate  jurisdiction, 
and  to  award  all  necessary  relief,  whether  legal  or  equitable,  is  a 
rule  well  settled  by  the  authorities."^^ 


■^  Woerner  Law  of  Admin.,  §  142. 
In  Clapp  V.  Huron  County  Bank.  Co., 
50  Ohio  St.  528,  35  N.  E.  308,  it  is 
said:  "That  if,  for  the  sake  of  the 
argument,  we  assume  that  the  lan- 
guage of  that  section  does  not  in 
terms  expressly  confer  the  jurisdic- 
tion, does  it  follow  that  such  power  is 
wanting?  Although  the  probate  court 
is  of  limited  and  statutory  jurisdiction, 
it  is,  we  think,  a  mistake  to  suppose 
that  it  has  no  equity  powers  unless 
the  same  are  expressly  conferred.  A 
power  given  to  make  a  particular  or- 
der implies  authority  to  hear  and  dis- 
pose of  all  questions  which  it  is  neces- 
sary to  have  settled  before  the  mak- 
ing of  such  final  order,  unless  the 
needed  authority  is  distinctly  denied." 
"It  may  therefore  be  said  that  when 
a  power  is  conferred  upon  the  pro- 
bate court  b}^  statute  unlimited  in  its 
method  of  execution  that  the  probate 
court  has  full  power  to  hear  and  ad- 
judicate all  matters  relating  thereto 
and  pass  upon  them  notwithsanding 
the  fact  that  in  doing  so  it  may  exer- 
cise the  powers  of  a  court  of  chan- 


cery or  one  of  common  law  or  only 
such  power  as  is  strictly  confined  to 
probate  jurisdiction.  By  virtue  of  the 
general  equity  powder  conferred  upon 
the  court  of  common  pleas  by  law, 
where  the  remedy  afforded  by  the  pro- 
bate court  is  inadequate,  in  order  that 
there  may  not  be  a  failure  of  justice, 
the  common  pleas  will  entertain  ju- 
risdiction." Rote  V.  Stratton,  2  N.  P. 
(Ohio)   27. 

^^  Powell  V.  North.  3  Ind.  392,  56 
Am.  Dec.  513n;  Langsdale  v.  Wool- 
len, 120  Ind.  78,  21  N.  E.  541 ;  DeHart 
V.  DeHart,  15  Ind.  167.  It  is  held  in 
the  case  of  Powell  v.  North,  3  Ind. 
392,  56  Am.  Dec.  513n,  that  a  probate 
court,  in  the  exercise  of  its  equity 
jurisdiction,  has  power  after  the  dis- 
solution of  a  partnership  by  the  death 
of  one  of  the  partners,  to  direct  that 
such  partnership  be  continued  for  the 
benefit  of  infant  wards,  and  to  order 
the  investment  of  the  funds  of  such 
wards  in  the  partnership  business. 

"  Smock  V.  Reichwine,  117  Ind.  194, 
19  N.  E.  lid ;  Hyland  v.  Baxter,  98  N. 
Y.    610;    Blanton    v.    King,    2    How, 


10 


INDIANA    PROBATE    LAW.  §    8 


§  8.  Jurisdiction  as  affected  by  domicile. — As  a  general 
rule  a  probate  court  has  jurisdiction  over  the  administration  of  a 
decedent's  estate  if  such  decedent,  at  the  time  of  his  death,  had 
his  domicile  within  the  jurisdiction  of  the  court. 

But  in  Schouler  on  Executors  and  Administrators  34,  it  is  said 
that,  "inasmuch  as  the  collection  of  credits  and  effects,  the  pay- 
ment of  debts,  the  distribution  of  the  residue,  and  the  final  settle- 
ment of  the  estate,  are  of  universal  convenience,  the  courts  of  the 
countrv  or  state  do  not  feel  compelled  to  wait  until  those  of  an- 
other have  acted,  nor  to  submit  domestic  claims  to  foreign  juris- 
diction ;  but,  aside  from  the  deceased  person's  last  domicile  and  a 
principal  probate  appointment,  a  competent  local  and  ancillary  ap- 
pointment is  procurable,  on  the  suggestion  that  property  requir- 
ing administration  lies  within  the  local  jurisdiction.  In  other 
words  locality,  with  personalty  belonging  to  the  estate  of  a  de- 
ceased person,  may  confer  a  local  probate  jurisdiction  regardless 
of  the  consideration  of  his  last  domicile." 

What  the  last  domicile  of  a  decedent  may  be  is  to  be  inferred 
from  all  the  facts  and  circumstances  of  the  case.  A  mere  tem- 
porary residence  in  any  country  does  not  give  the  courts  of  that 
country  exclusive  jurisdiction.  But  the  rule  prevails  that  though 
one  may  have  two  domiciles  for  certain  purposes  he  can  have  only 
one  for  the  purpose  of  succession."*^. 

Where  a  person  has  left  one  domicile  with  the  intention  of  set- 
tling in  another  and  dies  on  the  way,  the  law  is  not  settled  as  to 
which  jurisdiction  should  grant  letters  of  administration  upon  his 
estate."^ 

Where  a  person  dies  leaving  property  elsewhere  than  at  the 
place  of  his  domicile,  jurisdiction  of  such  property  for  the  pur- 
poses of  administration  may  be  assumed  by  the  courts  of  the 

(Miss.)    856;    Donovan's    Appeal,   41  21,  16  N.  E.  732;  Bartlett  v.  Hyde,  3 

Conn.    551;    Woerner's   Am.    Law   of  Mo.  490;  George  v.  Watson,  19  Tex. 

Admin.,  §  149  and  autiiorities  cited  in  354;  Olson,  Will  of,  63  Iowa  145,  18 

foot  note  25  to  this  chapter.  X.  E.  854;  Burnett  v.  Meadows,  7  B. 

="  Somerville   v.    Somervillc,   5   Ves.  Mon.    (Ky.)    277,  46   Am.    Dec.   517: 

jr.,  750.  Schouler  Extrs.  &  Admrs.,  23. 

"  Cummings  v.  Hodgdon,  147  Mass. 


8 


JURISDICTION. 


II 


country  where  the  property  is,  regardless  of  the  domicile  of  the 
owner.^^ 

And  such  administration  may  be  granted,  although  no  admin- 
istration has  been  taken  out  at  the  place  of  the  decedent's  domi- 
cile.-^ 

If  administration  is  granted  in  the  jurisdiction  of  the  last  domi- 
cile of  the  decedent,  this  administration  is  the  principal  adminis- 
tration and  one  granted  elsewhere  is  merely  ancillary.'^*'  The 
principal  letters  of  administration,  however,  need  not  precede 
the  ancillary.    The  latter  is  not  dependent  upon  the  former. ^^ 


""  Jeffersonville,  etc.,  R.  Co.  v. 
Swayne,  26  Ind.  477;  Miller  v.  Jones, 
26  Ala.  247;  Grimes  v.  Talbott,  14 
Md.  169;  Wright  v.  Smith,  19  Nev. 
143,  7  Pac.  365.  The  case  of  Sprad- 
dling V.  Pipkin,  15  Mo.  118,  says: 
"It  is  a  settled  rule  of  law,  not  re- 
quiring at  this  day  the  citation  of  au- 
thorities to  maintain  it,  that  the  ad- 
ministration of  all  the  goods  of  an  in- 
testate, wherever  situated  or  found,  is 
to  be  made  according  to  the  law  of 
the  land  of  the  testator's  domicile. 
When  they  are  in  a  different  country, 
they  are  first  applied  under  the  laws 
of  that  country  to  the  satisfaction  of 
the  claims  of  creditors  who  establish 
their  claim  under  its  laws,  and  if 
there  are  any  of  its  citizens  who 
claim,  as  distributees,  distribution  of 
the  assets  will  be  made  there.  But, 
after  the  claims  of  creditors  are  satis- 
fied, and  when  the  distributees  reside 
in  the  country  of  the  testator's  domi- 
cile, or  there  are  other  creditors 
whose  claims  remain  imsatisfied,  the 
tribunals  of  the  country,  in  which  the 
assets  are  found,  will  chrect  them  to 
be  remitted  to  the  country  of  the  dom- 
icile for  further  administration."  Mc- 
Cord  V.  Thompson,  92  Ind.  565. 
"Where  an  intestate  was  domiciled 
and  died  outside  of  this  state,  there 
can  be  no  valid  grant,  in  this  state,  of 


administration  upon  his  estate,  unless 
he  left  assets  here,  or  assets  of  such 
intestate  have  come  into  this  state 
after  his  death." 

■-'•'Wood  V.  Matthews,  7Z  Mo.  477. 
In  Stevens  v.  Gaylord,  11  Mass.  256, 
it  is  said:  "It  is  true  that  such  aux- 
iliary administration  is  not  usually 
granted  until  an  administrator  is  ap- 
pointed in  the  place  of  the  deceased's 
domicile.  But  this  can  not  be  a 
necessary  prerequisite,  for  if  so,  and 
■  it  should  happen  that  administration 
is  never  granted  in  the  foreign  state, 
the  debts  due  here,  vmder  such  cir- 
cumstances, to  a  deceased  person, 
could  never  be  collected;  and  the 
debts  due  from  him  to  citizens  of  the 
state  might  remain  unpaid." 

^^  McCord  V.  Thompson,  92  Ind. 
565 ;  Clark  v.  Clement,  ZZ  N.  H.  563 ; 
Green  v.  Rugely,  23  Texas  539.  In 
McCord  V.  Thompson,  92  Ind.  565,  the 
court  says :  "It  is  well  settled  that  be- 
tween different  administrators  in  dif- 
ferent states  there  is  no  privity."  In 
Croxton  V.  Renner,  103  Ind.  223,  2  N. 
E.  601,  it  is  said  that  the  jurisdiction 
of  the  circuit  court  to  grant  letters  of 
administration  is  derived  from  the 
statute,  and  can  only  be  exercised  in 
the  cases  provided  for  thereby. 

^'Shephard  v.  Rhodes,  60  111.  301; 
Pinney  v.  McGregory,  102  Mass.  186. 


12  INDIANA    PROBATE    LAW.  §    9 

The  reason  that  the  administration  of  the  last  domicile  is  re- 
garded as  the  principal  administration  is  based  on  the  well  settled 
doctrine  that  the  law  of  the  domicile  of  the  owner  of  personal 
property  governs  the  descent  and  distribution,  or  other  disposi- 
tion of  such  property.^^ 

§  9.  Jurisdiction  as  affected  by  assets. — Where  a  decedent 
is  an  inhabitant  of  this  state,  though  he  may  die  out  of  the  state, 
jurisdiction  is,  as  we  have  seen,  in  the  county  of  his  domicile  at 
the  time  of  his  death.  But  where  one  not  being  an  inhabitant  of 
this  state  dies,  either  in  this  state  or  out  of  it,  leaving  assets  in 
this  state,  or  assets  of  his  come  into  the  state  after  his  death,  the 
jurisdiction  to  administer  upon  his  estate  turns  on  the  question  of 
assets  and  is  in  the  county  where  such  assets  may  be  located. ^^ 

Letters  testamentary  or  of  administration  granted  upon  the  es- 
tate of  a  nonresident  decedent,  in  the  absence  of  assets  in  this 
state,  belonging  to  such  estate,  are  coram  non  judice  and  void.^* 

The  act  of  granting  such  letters  is  a  judicial  one,  and  binding 
upon  all  courts  and  persons;  and  such  act  is  presumed  to  have 
been  done  in  a  legal  manner,  and  will  be  so  respected,  even  when 
illegal,  until  revoked  or  set  aside.^^ 

^'Wilkins  V.  Ellett,  Admr.,  108  U.  ''Ray  v.  Doughty,  4  Blackf.  (Ind.) 
S.  256,  27  L.  ed.  718.  115;  Landers  v.  Stone,  45  Ind.  404. 
="  Burns'  R.  S.  1908,  §  2743.  In  Ferguson  v.  State,  90  Ind.  38,  the 
'^ Jeffersonville  &c.  R.  Co.  v.  court  says:  "While  the  appointment 
Swayne,  26  Ind.  477;  Croxton  v.  Ren-  of  an  administrator,  under  the  facts 
ner,  103  Ind.  223,  2  N.  E.  601.  In  stated,  was  irregular  and  would  prob- 
McCord  V.  Thompson,  92  Ind.  565,  it  ably  be  ground  in  a  direct  proceeding 
is  said :  "A  citizen  of  this  state  go-  for  revoking  his  letters,  such  appoint- 
ing into  another  state  and  there  pur-  mcnt  was  not  void.  It  can  not  be  at- 
chasing  of  an  administrator  property  tacked  in  a  collateral  proceeding." 
which,  in  the  course  of  administra-  And  in  the  case  of  Bowen  v.  Stewart, 
lion,  has  passed  under  the  jurisdic-  128  Ind.  507,  26  N.  E.  168,  28  N.  E. 
tion  of  a  proper  tribunal  of  that  state,  7i,  the  court  said:  "The  court  hav- 
and  for  the  purchase-money  execut-  ing  granted  letters  to  the  appellee,  the 
ing  to  such  administrator  a  negotia-  legal  presumption  existed  that  the  ac- 
ble  promissory  note,  cannot  thereby  tion  of  the  court  was  right,  and  the 
create  assets  in  this  state  on  which  a  burden  was  upon  the  appellants  to 
grant  of  ancillary  administration  can  prove  that  there  was  no  necessity  for 
properly  be  made  here."  administration  upon  Bowen's  estate." 


§    10  JURISDICTION.  13 

Nor  does  the  right  to  letters  of  administration  depend  upon  the 
existence  of  tangible  assets.  There  are  instances  where  the  ap- 
pointment of  an  administrator  may  be  proper  and  necessary  in 
order  to  prosecute  some  claim  of  indeterminate  value,  or  to  make 
satisfaction  of  some  record,  and  perhaps  even  for  other  pur- 
poses.^® 

§  10.    Jurisdiction    when    judge    interested    in    estate. — It 

may  be  stated  as  a  general  proposition  that  any  interest  of  the 
judge  in  the  estate  to  be  settled  will  disqualify  him  so  that  he  can- 
not act. 

"No  man  can  serve  two  masters"  is  a  statement  from  very  high 
authority,  and  taking  into  consideration  the  frailties  of  human  na- 
ture, no  one  can  act  justly  and  impartially  where  he  is  an  inter- 
ested party.  In  the  absence  of  any  statute  prescribing  what  inter- 
est will  disqualify,  just  what  will  constitute  such  interest  must  rest 
largely  in  the  moral  sense  of  the  judge  himself. 

The  interest  which  would  disqualify  a  judge  usually  will  arise 
from  relationship  or  a  financial  interest.  In  one  case  it  was  held 
that  it  was  a  manifest  violation  of  judicial  delicacy  and  propriety 
for  a  judge  to  appoint  his  son  as  administrator;'^  and  in  another 
it  was  held  that  the  appointment  of  a  brother  of  the  judge's  wife 
was  void.^^  But  the  fact  that  an  aunt  by  marriage  is  a  legatee  un- 
der a  will  before  him  for  probate  does  not  disqualify  himf^  nor 
will  the  fact  that  his  father-in-law  is  a  creditor  disqualify  him.''* 

But  if  he  has  any  financial  interest  in  the  estate  a  judge  should 
not  assume  jurisdiction.*^ 

If  a  judge  of  probate  has  any  interest  in  the  estate  or  has  been 
appointed  executor  thereof,  he  cannot  assume  jurisdiction  to  pro- 
bate the  will  or  grant  letters  of  administration;  or  if  he  has  a 

=«  Toledo   &c.    R.    Co.   v.   Reeves,   8  ''Hall  v.  Thayer,  105  Mass.  219,  7 

Ind.  App.  667,  35  N.  E.  199;  Ex  parte  Am.  Rep.  513. 

Jenkins,  25   Ind.   App.  532,  58  N.  E.  ^  Marston's    Appeal,    79    Me.   25,   8 

560,  8  Am.  St.  114.  Atl.  87. 

"Plowman  v.   Henderson,  59  Ala,  ""Aldrich's  Appeal,  110  Mass.  189. 

559.  *^Sigourney     v.     Sibley,     22     Pick. 

(Mass.)  507,  33  Am.  Dec.  762. 


14  INDIANA    PROBATE    LAW.  §    II 

claim  against  an  estate,  he  is  not  competent  to  assume  jurisdic- 
tion/- 

§  1 1.  Powers  of  judges  in  vacation. — The  judges  of  the  cir- 
cuit courts  shall  have  power,  throughout  their  respective  juris- 
dictions, to  make  orders  in  vacation  for  the  sale  of  personal  prop- 
erty at  private  vendue ;  for  the  compounding  of  debts ;  for  the  set- 
tlement of  an  estate  as  insolvent ;  for  the  execution  of  additional 
bonds;  and  such  other  orders  of  an  ex  parte  nature  as  may  facili- 
tate tlie  settlement  of  estates.  Such  orders  shall  be  in  writing, 
signed  by  the  judge,  and  shall  be,  by  the  clerk,  filed  and  recorded 
as  a  vacation  entry  in  the  proper  record.'*^ 

§  12.  Powers  of  the  clerk  in  vacation. — For  the  purpose  of 
granting  probate  of  wills,  issuing  letters  testamentary  and  of  ad- 
ministration, filing  reports,  accounts,  and  petitions  of  executors 
and  administrators,  filing  claims  against  the  estates  and  issuing 
process  and  notices  required,  the  clerks  of  the  circuit  courts  shall 
keep  th.e  courts  open  in  vacation  thereof ;  and  such  business  done 
by  a  clerk  shall  be  subject  to  the  supei-vision  of  the  court  at  the 
next  ensuing  term.** 

This  statute  gives  the  clerk  authority  to  grant  letters  of  admin- 
istration in  vacation  when  the  right  to  such  administration  is  not 
controverted ;  and  the  court,  at  its  next  ensuing  term,  is  bound  to 
ratify  such  appointment  unless  some  valid  objection  is  made 
against  it.*^  And  such  vacation  appointment  made  by  a  clerk 
must  be  confirmed  by  an  order  of  the  court  at  its  next  ensuing 
term,  or  such  appointment  will  then  cease  to  be  of  effect.*''  Such 
clerk  shall  report  to  the  circuit  court  at  its  succeeding  term  his  acts 
in  the  premises;  when,  for  good  cause  shown,  such  court  may  su- 
persede letters  issued  by  such  clerk,  or  disapprove  of  the  bond 

**  Thornton  v.  Moore,  61  Ala.  347.  may  or  must  do  it,  and  the  judge  in 

"  Burns'  R.  S.  1908,  §  2726.  In  con-  vacation  cannot,  unless  the  power  is 

sidering  the  power  of  a  judge  in  va-  expressly  conferred  upon  him  by  law. 

cation,  the  court  in  Newman  v.  Ham-  Ferger  v.  Wesler,  35  Ind.  53." 

mond,  46  Ind.  119,  says:  "Wherealaw  "Bums'  R.   S.   1908,   §  2725. 

authorizes  or  contemplates  the  doing  *^  Brown  v.  King,  2  Ind.  520. 

of  an  act  by  a  court,  it  is  and  must  be  *' State    v.    Chrisman,    2    Ind.    126; 

understood  that  the  court  in  term  time  Lee  v.  Ice,  22  Ind.  384. 


§13  JURISDICTION.  15 

taken;  in  which  case  such  court  shall  grant  letters  to  some  other 
person  entitled  to  the  same,  or  require  a  new  bond  or  additional 
sureties.  But  if  no  such  cause  is  shown,  the  court  shall  ratify 
and  adopt  the  letters  and  bond  granted  and  taken  by  such  clerk; 
which  fact  shall  be  entered  in  the  order  book  of  such  court.*' 

Letters  issued  by  a  clerk  under  authority  of  this  statute  are  con- 
clusive upon  all  persons  until  set  aside,  whether  they  are  con- 
firmed by  the  court  or  not.'*^ 

Section  2760,  Burns'  R.  S.  1908,  is  mandatory  and  upon  the 
convening  of  court,  it  shall  approve  and  confirm  the  letters  of  ad- 
ministration granted  by  the  clerk  in  vacation,  unless  for  good 
cause  shown  the  court  should  find  it  to  the  interest  of  such  estate 
to  revoke  the  letters  so  granted.  The  court  has  no  power  to  ar- 
bitrarily revoke  such  letters.*^ 

§  13.  Courts  of  record. — Courts  of  probate  are  courts  of 
record.  The  law  requires  a  record  of  the  proceedings  in  such 
courts  to  be  kept,  and  this  record  is  evidence  of  the  acts  of  such 
courts.^''  The  statute  reads :  "All  proceedings  touching  the  pro- 
bate of  wills  and  settlement  of  decedents'  estates  shall  be  re- 
corded in  separate  books  kept  for  that  purpose :  Provided,  That 
proceedings  touching  the  guardianship  of  infants  and  insane  per- 
sons may  be  recorded  therein.  The  clerk  of  each  circuit  court 
shall  also  keep,  in  his  office,  a  book  for  the  recording  of  wills  and 
the  probate  thereof;  a  book  in  which  he  shall  record  all  letters 
testamentarv'  and  of  administration,  within  ten  days  after  the 
same  are  issued ;  a  book  in  which  he  shall  record,  in  ten  days  after 
the  same  are  filed,  all  bonds  of  executors  and  administrators;  a 
book  in  which  he  shall  record  all  inventories  and  sale-bills  of  per- 

'' Burns'  R.    S.    1908,   §   2760.    In  that  the  court  at  the  next  term  had 

Lee  V.  Ice,  22  Ind.  384,  it  is  held  that  the  power  to  revoke  his  letters, 
where  letters  of  guardianship  are  is-  ^^  Collier  v.  Jones,  86  Ind.  342. 
sued  by  the  clerk  in  vacation,  that  the        ''  Kinnick  v.  Co}-,  40  Ind.  App.  139, 

court    at    the    next    succeeding    term  81  N.  E.  107;  Barricklow  v.  Stewart, 

may,  without  notice  to  the  guardian,  31  Ind.  App.  446,  68  N.  E.  316;  Bowen 

revoke  such  letters  and  appointment,  v.  Stewart,  128  Ind.  507,  26  N.  E.  168, 

and  appoint  another  person  as  guard-  28  X.  E.  IZ. 

ian.   That  in  such  a  case  the  appointee        ^°  State  v.  Chrisman,  2  Ind.  126. 
of  the  clerk  was  bound  to  take  notice  ' 


1 6  INDIANA    PROBATE    LAW.  8    14 

sonal  estates,  within  thirty  days  after  the  same  are  filed ;  a  general 
entry,  claim  and  allowance  docket  combined,  and  a  fee  book.  He 
shall  also  keep  a  final  record  book,  in  which  he  shall,  upon  the  or- 
der of  the  court,  or  request  of  a  party  in  interest,  but  not  other- 
wise, enter  a  complete  record  of  any  matter  or  proceeding  in  the 
administration  of  an  estate;  and  the  cost  thereof,  if  ordered  by 
the  court,  shall  be  taxed  as  cost  against  the  estate;  or,  if  such  com- 
plete record  be  made  at  the  request  of  a  party  in  interest,  then  the 
cost  thereof  shall  be  paid  by  him,  and  charged  to  the  estate,  and 
in  advance,  if  required  by  the  clerk. "^^ 

§  14.  Books  to  be  kept. — The  book  required  to  be  kept  by 
the  clerk  for  general  entry,  claim  and  allowance  docket,  shall  con- 
tain on  each  page  a  printed  heading:     No.  — ,  estate  of  ; 

executor  or  administrator.    On  the  left-hand  page  shall  be 


kept  the  general  entry  docket,  and  on  the  corresponding  right- 
hand  page  the  claim  and  allowance  docket.  As  soon  as  letters 
testamentary  or  of  administration  shall  be  issued  on  an  estate, 
the  clerk  shall  note  the  estate  on  the  general  entry  docket,  and 
note  thereon  the  number  of  the  estate,  name  of  the  executor  or 
administrator,  his  post-office  address,  date  of  letters,  penalty  of 
bond,  and  sureties  thereon.  When  an  inventory  or  sale-bill  shall 
be  filed,  he  shall  note  thereon  the  amount  and  date  of  filing;  he 
shall,  from  time  to  time  thereafter,  note  thereon,  briefly,  the  pro- 
ceedings of  the  court  and  date  thereof.  Each  estate  set  off  to  a 
widow  without  administration,  and  the  number  thereof,  shall  also 
be  noted  on  said  docket.  Estates  shall  be  numbered  from  one  up- 
wards, consecutively,  and  shall  retain  the  same  number  pending 
the  settlement  thereof.  On  the  right-hand  page,  opposite  the  gen- 
eral entry  docket  of  an  estate,  shall  be  kept  the  claim  and  allow- 
ance docket  of  said  estate;  it  shall  be  provided  with  columns  and 
printed  headings  thereto,  for  the  number  of  the  claim,  name  of 
claimant,  date  of  filing,  date  of  allowance  and  amount  thereof, 
and  remarks.  The  claims,  when  filed,  shall  be  by  the  clerk  num- 
bered from  one  upwards,  and  bear  the  same  number  in  all  subse- 

"  Burns'  R.  S.  1908,  §  2727. 


§    15  JURISDICTION.  17 

quent  proceedings  thereon ;  and  for  all  services  in  filing  and  re- 
cording on  such  docket  any  claims,  the  clerk  shall  be  allowed  ten 
cents,  and  no  more.^'  Such  record  book  shall  be  provided  by  the 
clerk  at  the  expense  of  the  county. ^^ 

§  15.  Jurisdiction  of  justices  of  the  peace. — The  earlier 
statutes  in  this  state  conferred  jurisdiction  upon  justices  of  the 
peace  in  actions  by  and  against  executors  and  administrators,^* 
and  justices  were  given  jurisdiction  of  suits  upon  an  administra- 
tion bond  against  executors  and  administrators  and  their  sureties, 
where  the  amount  claimed  for  the  breach  of  such  bond  did  not 
exceed  the  jurisdiction  of  justices  of  the  peace. ^^  The  act  estab- 
lishing courts  of  common  pleas  conferred  upon  such  courts  orig- 
inal and  exclusive  jurisdiction  in  all  actions  against  executors  and 
administrators.  °° 

Under  this  statute  it  was  held  that  a  justice  of  the  peace  had 
no  jurisdiction  in  an  action  which  was  founded  upon  a  claim 
against  an  executor  or  administrator  in  his  fiduciary  capacity,  and 
a  judgment  rendered  in  such  cause  was  held  void.^^  When  courts 
of  common  pleas  were  abolished,  their  jurisdiction  was  trans- 
ferred to  the  circuit  courts.^* 

There  seems  to  be  no  doubt  of  the  right  of  an  executor  or  ad- 
ministrator to  maintain  suits  in  justices'  courts  upon  any  claim 
due  the  estate,  the  amount  of  which  falls  within  the  limit  fixed 
upon  the  jurisdiction  of  justices  of  the  peace,  as  the  practice  act 
appears  to  confer  jurisdiction  upon  such  justices  within  a  given 
amount,  without  reference  to  the  character  in  which  a  party  sues.'^^ 

'-  Burns'  R.  S.  1908,  §  2835.  case  of  Hillenberg  v.  Bennett,  88  Ind. 

"  Burns'  R.  S.  1908,  §  2988.  540,  the  court,  in  considering  the  ques- 

"  R.   S.   1843,  p.  683 ;  Thompson  v.  tion  of  suits  by  or  against  executors 

Harbison,  7  Blackf.    (Ind.)   495.  or  administrators,  says:  "In  Wheeler 

"Walker   v.    Prather,    3    Ind.    112;  v.  Calvert,  25  Ind.  365,  which  was  a 

Burns'  R.  S.  1894,  §   1512.  suit  by  an  administrator  in  the  court 

"2  G.  &  H.,  §  4,  p.  20.  of  common  pleas,  upon  a  promissory 

"Palmer  V.  Fuller,  22  Ind.  115.  note    for   $4.50,    the   cause   of   action 

'*  Burns'  R.  S.  1894,  §  1387.  was  admitted  by  the  defendant,  and 

""Burns'  R.  S.  1894,  §  1500;  Arnold  this     court     sustained     a     judgment 

V.  Fleming,   14  Ind.   10 ;   Scanland  v.  against  the   defendant   for  costs.     In 

Ruble,  4  Blackf.    (Ind.)   481.     In  the  construing  said  sections  4  and  8,  the 

2 — Pro.  Law. 


l8  INDIANA    PROBATE    LAW.  §    l6 

The  conclusion  from  all  this  is  that  as  to  suits  against  executors 
and  administrators  in  their  fiduciary  capacity,  justices  of  the  peace 
no  longer  have  jurisdiction;  but  that  an  executor  or  administra- 
tor, as  such,  may  yet  maintain  an  action  in  justices'  courts,  sub- 
ject only  to  the  statutory  limitation  imposed  upon  such  courts  as 
to  the  subject-matter  of  suit  and  the  amount  sued  for. 

§  16.  Probate  commissioners. — There  has  been  created  by 
the  legislature  of  this  state  a  system  of  subordinate,  or  assistant, 
probate  courts  under  the  supervision  of  officers  designated  pro- 
bate commissioners.  These  officers  are  appointed  by  the  judge  of 
the  circuit  court  in  the  counties  where  they  are  authorized. 

The  latest  legislative  enactment  upon  this  subject  is  as  follows: 
That  in  all  counties  of  this  state  containing  a  voting  population 
of  over  seven  thousand  as  shown  by  the  vote  cast  for  secretary 
of  state  at  the  last  preceding  election,  the  judge  of  the  circuit 
court  of  each  of  said  counties  when  he  shall  find  that  the  pro- 
bate business  of  his  court  requires  it,  and  that  the  interests  of 
minor  heirs  and  other  beneficiaries  of  the  state,  guardianships,  re- 
ceiverships and  other  trusts  pending  in  said  court  will  be  pro- 
tected and  subserved  thereb}^  and  that  the  same  is  demanded  for 
the  proper  protection  of  such  interests,  shall  cause  such  finding  to 
be  entered  of  record,  and  thereupon  shall  appoint  some  competent 
person,  resident  of  the  county,  as  probate  commissioner  of  such 
court,  and  in  such  finding  and  order  of  appointment,  of  proof 
first  heard  in  open  court,  shall  fix  and  specify  the  annual  salary 
of  such  commissioner  and  the  time  of  payment  thereof,  and 
shall  thereupon  cause  to  be  certified  to  the  auditor  of  such 
county  a  copy  of  such  finding  and  order,  which  shall  be  suf- 

court   held  that  all   suits  against   ex-  cases    costs    would    follow    judgment, 

ecutors    or    administrators    must    be  It  was  further  said  that  executors  and 

brought    in    said    court    of    common  administrators  might  sue  either  in  the 

pleas,  and  that  executors  and  admin-  circuit  court  or  before  justices  of  the 

istrators  might  sue  in  that  court  upon  peace,  in  cases  in  which  jurisdiction 

any  claim,  debt  or  demand  of  any  kind  was   conferred   on   those    courts,   but 

accruing  to  them  in  their  fiduciary  ca-  that  they  were  not  compelled  to  do  so, 

pacity,  without  regard  to  the  amount  but  might  sue  in  the  common  pleas." 
of  such  demand,  and  that  in  all  such 


I    17  JURISDICTION.  19 

ficient  authority  for  said  auditor  to  draw  his  warrant  for  the  pay- 
ment thereof  at  the  times  and  in  the  amounts  in  said  record  set 
forth. «° 

Another  statute  provides  for  the  employment  of  assistants  to 
these  officers  and  fixes  their  compensation."  It  is  the  duty  of 
probate  commissioners  to  take  over  the  routine  duties  imposed  by 
law  upon  circuit  judges  in  probate  matters.  These  findings  and 
acts  are  reported  to  the  circuit  court  and  become  a  part  of  the  rec- 
ords of  such  court  as  if  made  by  the  regular  judge  thereof.''^ 

§  17.  Oath,  term  of  office. — "Said  commissioner  shall  take 
and  subscribe  an  oath  for  the  faithful  discharge  of  his  duties,  and 
shall  hold  his  office  for  the  term  of  four  years,  subject  to  the 
provisions  of  this  act,  and  for  his  services  as  such  commissioner 
shall  receive  or  be  allowed  no  fees,  emoluments  or  compensation 
whatever,  other  than  the  salary  fixed  by  said  court  and  required 
to  be  paid  out  of  the  treasury  of  said  county,  as  aforesaid,  and 
which  salary  shall  not  be  increased  during  his  said  term  of 
office."^^ 

§  18.  Powers  and  duties. — "Said  commissioner  shall  have 
power  to  administer  oaths,  take  acknowledgments,  and  do  all 
other  acts,  legally  pertaining  to  said  office  and  necessary  to  carry 
into  effect  the  rules  or  orders  of  said  court,  and  he  may,  at  any 
time,  be  removed  by  the  court  for  failure  to  properly  discharge 
the  duties  of  his  trust.®* 

"At  the  time  of  the  appointment  of  said  commissioner,  or  as 
soon  thereafter  as  may  be  practicable,  the  court  shall  define  the 
duties  of  such  commissioner  and  cause  a  record  thereof  to  be 
made  upon  the  order  book  of  said  court. "''^ 

§  19.  Rules  and  their  enforcement. — "Such  court  shall 
have  power  to  make  and  enforce  all  necessary  rules  for  the  pro- 
tection of  the  several  trusts  pending  therein,  and  the  requiring  of 

^"Acts  1911,  p.  646.  ^^  Burns'  R.  S.  1908,  §  2729. 

"Burns'  R.  S.  1908,  §§  2734,  2736.  ■« Burns'  R.  S.  1908,  §  2730. 

»=  Burns'  R.   S.   1908,   §§  2735,  Acts  ^Burns'  R.  S.  1908,  §  2731. 
1911,  p.  63. 


20  INDIANA    PROBATE    LAW.  8    I© 

delinquent  guardians,  administrators  or  other  trustees  to  make  re- 
ports, give  new  or  additional  bonds,  or  discharge  any  other  duty 
required  of  them  by  law  or  the  rules  of  said  court,  and  may  vest 
such  commissioner  with  all  necessary  power  in  the  premises,  look- 
ing to  the  protection  of  such  trusts  and  the  enforcement  of  the 
law  and  rules  of  said  court  in  reference  thereto,  and  the  proper 
and  speedy  transaction  of  the  probate  business  of  such  court,  as 
the  court  in  its  discretion  may  deem  advisable  and  necessary.''^ 

§  20.  Suspension  of  commissioner. — "At  any  time  after 
the  appointment  of  such  commissioner  when  such  court  shall 
deem,  that  his  services  may  be  dispensed  with,  either  for  a  certain 
or  indefinite  length  of  time,  without  detriment  to  the  business  of 
said  court,  or  the  interest  of  the  trusts  therein  pending,  the  court 
shall  enter  of  record  its  finding  to  that  effect  and  cause  the  same 
to  be  certified  to  the  auditor  of  such  county,  and  thereupon,  dur- 
ing the  time  so  specified  in  such  finding,  the  salary  of  such  com- 
missioner shall  cease,  and  his  services  during  said  time  be  dis- 
pensed with;  the  said  commissioner  to  again  assume  his  duties 
and  receive  his  salary  therefor  only  when  the  court  shall  so  or- 
der."" 

«« Burns'  R.  S.  1908,  §  2732.  ^  Burns'  R.  S.  1908,  §  2733. 


§32. 

Same — Statute  mandatory. 

33. 

Void  and  voidable  letters. 

34. 

Who  is  to  be  preferred. 

35. 

Right  of  husband  or  wife. 

36. 

The  right  of  others. 

37. 

The  right  in  the  same  degree. 

38. 

Who  not  entitled  to  letters. 

39. 

Waiver  or  renunciation  of  the 

right. 

40. 

Miscellaneous. 

41. 

Form  of  petition. 

42. 

Letters  as  evidence. 

43. 

Notice  of  appointment. 

44. 

Proof  of  notice. 

CHAPTER  II 

LETTERS    OF    ADMINISTRATION 

§21.  Generally. 

22.  The  right  to  letters. 

23.  Time  when  letters  issue. 

24.  Settlement  without  administra- 

tion. 
24a.  No      administration  —  Heirs' 
rights. 

25.  Where  granted. 

26.  Statute  must  be  complied  with. 

27.  Meaning  of  assets. 

28.  Assets  in  different  jurisdictions. 

29.  Ancillary  administration. 

30.  Powers  and  duties  of  ancillary 

administrators. 

31.  To     whom     letters     shall     be 

granted. 

§  21.  Generally. — It  was  the  rule  of  the  common  law  that 
the  personal  property  of  a  deceased  person  vested  in  his  personal 
representatives,  while  title  to  his  real  estate  passed  to  his  heirs; 
and  out  of  this  rule  grows  the  one  applied  in  this  state  that  the 
personal  property  is  the  primary  fund  out  of  which  the  debts  of  a 
decedent  must  be  paid.  It  therefore  follows  that  where  there  is 
any  personal  property  to  distribute,  or  where  there  are  any  debts 
owing  by  a  decedent,  there  should  be  an  administration  of  his 
estate. 

While  the  personal  property  is  the  primary  fund  out  of  which 
debts  are  to  be  paid,  the  fact  that  a  decedent's  real  estate  also  is 
liable  for  his  debts,  makes  it  important,  so  far  as  the  title  to  the 
real  estate  is  concerned,  that  there  should  be  an  administration  of 
his  estate;  for  if  there  is  no  evidence  in  the  public  records  of  an 
administration,  it  may  prove  difficult  to  show  that  the  real  estate 
may  not  be  held  liable  for  some  unpaid  debt  of  the  decedent. 

21 


22 


INDIANA    PROBATE    LAW.  §    22 


Letters  issued  by  the  court,  or  the  clerk  thereof  in  vacation,  are 
of  two  kinds :  Letters  testamentary  and  letters  of  administration. 
Executors  are  persons  appointed  under  letters  testamentary,  while 
those  appointed  under  letters  of  administration  are  called  admin- 
istrators. An  executor  is  named  and  empowered  by  the  will  of 
his  testator,  and  in  the  settlement  of  the  estate  is  largely  con- 
trolled by  the  terms  of  the  will;  and  in  the  absence  of  a  will  the 
estate  is  settled  by  an  administrator  appointed  by  the  court,  who 
makes  such  settlement  by  direction  of  the  court  according  to  the 
statutes  governing  such  settlement.  The  duties  of  executors  and 
administrators  in  the  management  of  estates  intrusted  to  their 
care  are  very  similar,  and  their  discharge  of  such  duties  is  gov- 
erned and  controlled  by  the  same  statutes,  so  that  what  may  be 
said  as  to  the  law  governing  one  class  will  generally  be  found  ap- 
plicable to  the  other.  An  executor,  failing  to  qualify  or  otherwise 
declining  the  trust  imposed  upon  him  by  the  will,  an  administra- 
tor with  the  will  annexed  will  be  appointed  by  the  court,  and  when 
appointed  such  administrator  will  in  all  things  pertaining  to  the 
settlement  of  the  estate  be  governed  by  the  will  as  the  executor 
would  have  been  if  he  had  assumed  the  trust.^ 

§  22.  The  right  to  letters. — The  legal  presumption  is  that 
a  decedent  dies  intestate.^  An  intestate  is  one  who  dies  leaving 
no  will,  but  leaving  assets  to  be  administered  according  to  law. 
Letters  of  administration  are  only  granted  upon  estates  of  intes- 
tates. 

Before  a  valid  grant  of  administration  can  be  had  upon  an  es- 
tate, it  must  appear  to  the  clerk  or  court  granting  the  letters,  that 
the  owner  of  such  estate  died  intestate;  and  where  nothing  is 

^Before  letters  are  granted  on  the  it  is  said:  "It  is  conclusively  pre- 
estate  of  one  represented  to  be  dead,  sumed,  in  a  collateral  proceeding,  that 
the  fact  of  such  death  must  be  proved,  a  man  is  dead  v^rhen  letters  of  admin- 
and  if  letters  of  administration  are  istration  are  granted  on  his  estate  by- 
applied  for,  that  he  died  intestate ;  the  proper  tribunal." 
and  proof  also  should  be  made  of  the  "  Stokesberry  v.  Reynolds,  57  Ind. 
date  of  death  and  the  value  and  char-  425 ;  Mortgage  &c.  Co.  v.  Moore,  150 
acter  of  his  property.  In  the  case  of  Ind.  465,  50  N.  E.  72. 
Jenkins  v.  Peckinpaugh,  40  Ind.   133, 


§    23  LETTERS    OF    ADMINISTRATION.  23 

shown  to  the  contrary  it  will  be  presumed  that  a,  decedent  died 
intestate."  And  a  grant  of  letters  of  administration  is  prima  facie 
evidence  of  the  death  of  the  person  on  whose  estate  the  adminis- 
tration is  granted.^ 

If  letters  of  general  administration  are  granted  during  the  pen- 
dency of  a  contest  over  a  will,  or  after  a  will  has  been  probated, 
such  letters  are  null  and  void.° 

The  right  to  issue  letters  of  administration  upon  the  estate  of 
a  decedent,  also  depends  to  some  extent  upon  the  value  of  the 
estate.^ 

On  the  death  of  a  person  who  has  made  no  will  his  real  estate 
descends  to  his  heirs  subject  to  the  payment  of  debts  after  his 
personal  estate  is  exhausted,  while  such  personal  estate  is  vested 
in  the  person  or  persons  legally  appointed  by  the  proper  officer  or 
tribunal  in  trust,  for  the  payment  of  the  debts  of  such  decedent 
and  the  distribution  of  the  surplus  to  those  who  are  by  law  en- 
titled to  it." 

§  23.  Time  when  letters  issue. — There  is  no  provision  in 
the  law  of  this  state  requiring  an  application  for  letters  of  admin- 
istration to  be  filed  within  any  specified  time.  In  the  absence, 
however,  of  any  statutory  regulation  fixing  the  time  within  which 
letters  of  administration  must  be  granted,  courts  insist  there  shall 
be  no  unreasonable  delay  except  for  good  cause  shown.     It  being 

^  Bulkley  v.  Redmond,  2  Brad.    (X.  provisions  rest,  or  rather  absurdity  of 

Y.)  281 ;  Stokesberr}^  v.  Reynolds,  57  a  contrary  view  is  self-evident.    Why 

Ind.  425.  should  the  law  compel  an  administra- 

*  Seibert  v.  True,  8  Kan.  52 ;  Jenkins  tion  where  there  is  nothing  to  be  ad- 

v:  Peckinpaugh,  40  Ind.  133.  ministered?    The   appointment  of   an 

'Landers    v.    Stone,    45    Ind.    404;  administrator  could  have  no  possible 

Watson  V.  Glover,  11  Ala.  323.  effect   except   to    diminish   or   eat   up 

®  Burns'  R.  S.  1908,  §  2943.  Pace  v.  what  the  law  intends  for  the  widows 

Oppenheim,  12  Ind.  533 ;  Bean  v.  Bum-  or     orphans."      Woerner     Am.     Law 

pus,  22  ]\Ie.  549;  Pinney  v.  McGreg-  Admin.  436. 

cry,  102  Mass.  186.     It  is  provided  by  '  2  Bouv.  Inst.  141 ;  Weyer  v.  Second 

statute  in  this  state  that  if  the  amount  Xat.  Bank,  57  Ind.  198;  Highnote  v. 

of  the  estate  left  by  a  decedent  does  White,  67  Ind.  596;  Rogers  v.  Zook, 

not  exceed  the  allowance  made  by  law  86  Ind.  237 ;  Harley  v.  Heist,  86  Ind. 

to  his  widow  no  administration  need  196,  44  Am.  Rep.  285 ;  Humphries  v. 

be  had  upon  his  estate.     "The  sound-  Davis,  100  Ind.  369;  Latta  v.  Miller, 

ness  of  the  principle  upon  which  such  109  Ind.  302,  10  N.  E.  100. 


24  INDIANA    PROBATE    LAW.  g    24 

held  in  one  case  that  a  delay  of  three  years  must  be  satisfactorily 
explained.^ 

In  another  case  it  was  held  that  no  presumption  arose  against 
an  application  for  letters  made  seventeen  years  after  the  death  of 
the  intestate,  that  there  had  been  a  prior  administration  and  that 
the  estate  had  been  closed.^ 

§  24.  Settlement  without  administration. — Whenever  a 
resident  of  this  state  dies,  either  testate  or  intestate,  the  law  re- 
quires that  letters  testamentary  or  of  administration  upon  his  es- 
tate, shall  issue  from  some  court  of  competent  jurisdiction  for  the 
final  settlement  of  such  estate.  Such  settlement,  which  should  be 
made  in  each  and  every  estate,  becomes  an  absolute  necessity 
when  an  estate  is  encumbered  with  debts.  The  necessity  for  this- 
is  obvious;  the  widow  is  entitled  to  a  certain  portion  of  the  real 
and  personal  property  of  every  estate  against  the  heirs  and  cred- 
itors, while  the  heirs  are  not  entitled  to  any  part  of  an  estate  until 
the  debts  are  paid.^*' 

But  this  rule  is  not  absolute  and  arbitrary.  The  administration 
of  an  estate  is  not  absolutely  necessary,  especially  when  there  are 
no  debts  against  it,  and  the  heirs  have  made  a  satisfactory  dis- 
tribution among  themselves.  In  Bowen  v.  Stewart,  128  Ind.,  on 
page  515,  our  Supreme  Court  says:  "It  cannot  well  be  doubted 
that  the  heirs  to  an  estate,  who  are  of  full  age  and  capable  of  con- 
tracting, may  settle  such  estate  without  regular  administration, 
free  from  the  interference  of  third  parties,  provided  the  estate 
owes  no  debts,  and  there  is  nothing  to  be  done  by  an  administra- 
tor except  to  divide  such  estate  among  the  several  heirs.    So  they 

*Todliuntcr  V.  Stewart,  39  Ohio.  St.  collect    his    claim    against    the    dece- 

181.  dent's  estate,  by  and  through  an  ad- 

"  Hcaly  V.  Buchanan,  34  Cal.  567.  ministration  of  such  estate,  and  in  no 

'"  Northwestern  Conference  v.  My-  other  way  or  manner,  where  his  claim 

ers,    36    Ind.    375;    Wilson    v.    Davis,  is  not  secured  by  a  mortgage  or  spe- 

37   Ind.    141;    Lynch   v.    Jennings,   43  cific  lien  on  particular  property;  and, 

Ind.  276;    Leonard  v.    Blair,   59  Ind.  without  such  administration,  he  can- 

510.      In    McCoy    v.    Payne,    68    Ind.  not  recover  his  claim  from  the  widow, 

327,  it  is  said :  "Under  the  law  of  this  heirs,    devisees    or    legatees,    or    even 

state,  the  creditor  of  a  decedent  can  from  an  executor  de  son  tort." 


24 


LETTERS    OF    ADMINISTRATION. 


25 


may  settle  such  estate  without  administration  where  there  are 
debts,  provided  the  creditors  do  not  object  to  such  settlement,  and 
a  court  of  equity  will  relieve  them  from  the  interference  of  third 
persons  who  procure  letters  of  administration,  without  their  con- 
sent, where  there  is  no  necessity  for  such  letters."^^ 

If  all  the  persons  entitled  to  distribution  are  of  full  age  they 
may  pay  the  debts  of  the  estate  and  divide  the  property  among 
themselves  without  the  appointment  of  an  administrator/- 


"  Taylor  v.  Phillips,  30  Vt.  238; 
Hays  V.  Vickery,  41  Ind.  583;  Owings 
V.  Bates,  9  Gill.  (Md.)  463;  Babbitt 
V.  Bowen,  Zl  Vt.  437 ;  Henderson  v. 
Clarke,  27  Miss.  436;  Needham  v.  Gil- 
lett,  39  Mich.  574;  Fretwell  v.  Mc- 
Lemore,  52  Ala.  124;  Coldron  v. 
Rhode,  7  Ind.  151;  Hibbard  v.  Kent, 
15  N.  H.  516;  Hargroves  v.  Thomp- 
son, 31  Miss.  211;  Walworth  v.  Abel, 
52  Pa.  St.  370;  Weaver  v.  Roth,  105 
Pa.  St.  408;  Woerner  Am.  Law.  Ad- 
min., §  201;  Block  v.  Butt,  41  Ind. 
App.  487,  84  N.  E.  357;  Bruning  v. 
Golden,  159  Ind.  199,  64  N.  E.  657. 

'=  Salter  v.  Salter,  98  Ind.  522 ;  Rob- 
ertson V.  Robertson,  120  Ind.  ZZZ,  22 
N.  E.  310;  Hays  v.  Vickery,  41  Ind. 
583;  Bowen  v.  Stewart,  128  Ind.  507, 
26  N.  E.  168,  28  N.  E.  1Z ;  Taylor  v. 
Phillips,  30  Vt.  238;  Needham  v.  Gil- 
lett,  39  Mich.  574.  In  Schneider  v. 
Piessner,  54  Ind.  524,  the  court,  in 
speaking  of  the  right  of  the  heirs  to 
sue  to  recover  a  debt  due  to  the  de- 
cedent, says :  "But  in  our  opinion, 
where  the  heirs  of  the  creditor  sue 
for  the  debt,  the  complaint  should 
aver  every  fact  necessary  to  give  them 
a  right  of  action  and  to  recover  the 
money.  It  is  not  sufficient  to  show 
that  there  are  no  debts  to  be  paid. 
The  complaint  must  show  by  its  aver- 
ments that  the  heirs  suing  are  en- 
titled to  the  money.  It  is  upon  this 
ground  that  it  is  necessary  to  allege 


the  nonexistence  of  debts."  Lock- 
hart  V.  Schlotterback,  12  Ind.  App. 
683,  40  N.  E.  1109.  In  considering  the 
right  of  an  administrator  to  sue  and 
recover  from  an  heir  of  a  decedent 
property  of  the  decedent  taken  and 
held  by  the  heir,  the  Supreme  Court  in 
the  case  of  Humphries  v.  Davis,  100 
Ind.  369,  says :  "Here  the  personal 
and  real  property  were  both  in  the 
possession  of  the  heir  rightfully  en- 
titled to  it,  and  the  administrator 
should  not  be  allowed  to  take  it  from 
him  unless  needed  for  some  lawful 
purpose.  If  it  was  not  needed  for 
some  legitimate  purpose,  the  adminis- 
trator ought  not  to  take  it  from  the 
lawful  heir.  It  would  ultimately  vest 
in  the  heir,  and  his  rights  and  posses- 
sion should  not  be  disturbed.  It  is 
clear  that  if  some  third  person  had 
secured  the  property,  and  there  were 
no  debts,  the  heir  would  have  been 
awarded  it  in  due  course  of  law,  and 
now,  that  he  has  it,  it  should  not  be 
taken  from  him  without  showing  a 
full  and  clear  right.  There  would  be 
little  good  accomplished  by  going 
through  the  course  of  administration 
and  at  the  end  put  the  property  back 
in  the  hands  of  the  heir  less  the  ex- 
pense of  a  useless  and  vexatious  ad- 
ministration. At  all  events,  a  clear 
case  must  be  shown,  and,  in  order  to 
show  such  a  case,  it  is  necessary  to 
aver,    among    other    things,    that    the 


26  INDIANA    PROBATE    LAW.  §    24a 

But  such  agreements  are  not,  however,  favored  by  the  courts, 
and  if  made  unfairly,  or  in  disregard  of  the  rights  of  any  one  in- 
terested in  the  estate,  they  may  be  set  aside  by  the  subsequent  ap- 
pointment of  an  administrator." 

The  better  rule  is  to  settle  the  estate  according  to  the  formali- 
ties prescribed  by  the  law.  While  it  is  true  that  if  there  are  no 
claims  due  the  estate  to  collect,  or  if  there  should  be,  and  the  par- 
ties owing  them  are  willing  to  pay  them  to  the  heirs,  and  if  the 
heirs  should  pay  all  the  debts  of  the  decedent,  an  administration 
mav  be  dispensed  with;  yet  if  the  decedent  owned  real  estate,  or 
left  minor  heirs,  it  is  best  to  have  an  administration  and  by  so 
doing  avoid  all  future  trouble. 

§  24a.  No  administration — Heir's  rights. — The  general 
rule  is  that  an  administrator  or  executor  alone  can  maintain  an 
action  for  the  recovery  of  the  personal  property  of  a  deceased  per- 
son, or  for  a  debt  due  to  his  estate  at  the  time  of  his  death.  That 
rule  prevails  in  this  state  with  the  single  exception  that  where 
there  is  no  administrator  or  executor  to  prosecute  the  action,  and 
no  debts  to  be  paid  by  the  estate,  the  heirs  may  prosecute  the  ac- 
tion. But  to  be  successful  in  such  an  action  the  heirs  must  allege 
and  prove  every  necessary  fact  to  give  them  a  right  to  maintain 
such  action. ^^ 

As  the  claims  of  creditors  are  paramount  to  the  rights  of  the 
heirs,  it  is  necessary,  in  an  action  brought  by  heirs  to  recover  a 
debt  due  an  ancestor  to  allege  and  prove  that  the  debts  of  the  an- 
cestor have  been  paid,  and  that  the  estate  has  been  settled,  or  that 
no  administration  was  had  thereon.^^  There  is  sound  reason  for 
this  rule.  So  long  as  there  is  an  administrator  he  is  entitled  to  re- 
cover all  the  debts  due  the  estate,  besides  the  heirs  can  have  no 

mother's  estate  was  not  administered  Schneider   v.  Piessner,   54    Ind.   524; 

upon."  Finnegan  v.  Finnegan,   125    Ind.  262, 

"Gale  V.  Corey,  112  Ind.  39,  13  N.  25  N.  E.  341. 

E.  108,  14  X.  E.  362;  Carter  v.  Green-  '' Magel   v.  Milligan,   150  Ind.   582, 

wood,   5   Jones   Eq.    (N.   Car.)    410;  50  N.  E.  564,  65  Am.  St.  382;  Hall  v. 

Cochran  v.  Thompson,  18  Texas  652.  Brownlee,  28  Ind.  App.  178,  62  N.  E. 

"Ferguson  v.  Barnes,  58  Ind.  169;  457. 


§    25  LETTERS    OF    ADMINISTRATION.  2/ 

right  to  sue  for  and  recover  debts  due  the  estate  when  such 
amounts  may  be  needed  to  pay  creditors  of  the  estate. 

One  of  the  essential  elements  of  an  action  of  this  kind  by  an 
heir  is  the  fact  that  there  is  no  administration  on  the  estate,  for 
the  reason  that  on  the  death  of  the  ancestor  the  personal  property 
of  a  decedent  goes  to  his  personal  representatives.^*^  Then  again 
persons  indebted  to  the  estate,  if  there  was  no  administration,  or 
no  averment  and  proof  of  none,  would  be  at  a  loss  to  know  who 
was  entitled  to  receive  and  receipt  for  the  money  due  the  estate, 
and  the  court  in  many  cases,  would  experience  difficulty  in  order- 
ing a  proper  distribution,  for  the  amount  due  each  heir  would  de- 
pend upon  such  showing,  together  with  proof  of  the  number  and 
names  of  the  heirs  entitled  to  such  distribution.^' 

§  25.  Where  granted, — Letters  of  administration  shall  be 
granted  in  the  county  where,  at  his  death,  the  intestate  was  an 
inhabitant;  where,  not  being  an  inhabitant  of  this  state,  he  leaves 
assets;  where,  not  being  an  inhabitant  and  dying  out  of  the  state, 
he  leaves  assets;  where,  not  being  an  inhabitant,  he  dies  out  of  the 
state,  not  leaving  assets  in  any  county  thereof,  but  assets  of  such 
intestate  shall  afterward  come  into  it ;  but  where,  not  being  an  in- 
habitant, he  shall  die  out  of  the  state,  leaving  assets  in  several 
counties,  or  assets  of  such  intestate  shall,  after  his  death,  come 
into  several  counties,  letters  may  be  granted  in  any  one  of  the 
counties  in  which  such  assets  may  be  at  the  time  of  his  death,  or 
into  which  they  come  thereafter ;  and  the  administration  first  law- 
fully granted  shall  extend  to  all  the  estate  of  the  intestate,  and 
exclude  the  jurisdiction  of  administration  in  the  same  estate  in 
all  other  counties.^® 

This  statute  in  practically  its  present  form  has  been  the  law  of 
this  state  since  1843.^^ 

Where  a  person  dies  intestate  leaving  personal  property  else- 
where than  at  the  place  of  his  domicile,  the  probate  court  of  that 
place,  where  the  property  is,  may  assume  jurisdiction  without  re- 

^'^Merchants  Nat.   Bank  v.  McClel-        '' Burns'  R.  S.  1908,  §  2743. 
Ian,  40  Ind.  App.  1,  80  N.  E.  854.  ''  R.  S.  1843,  §  92. 

^'  Finnegan    v.    Finnegan,    125    Ind. 
262,  25  N.  E.  341. 


28  INDIANA    PROBATE    LAW.  §    2^ 

gard  to  the  question  of  domicile.  There  must,  however,  be  a 
showing  of  property,  or  of  debts  to  justify  the  appointment  of  an 
administrator,  but  the  character  of  the  property  is  immaterial.^*' 

By  the  first  subdivision  of  the  above  statute  there  is  no  condi- 
tion annexed  to  the  power  to  grant  letters  of  administration,  other 
than  that  the  intestate  must  have  been  an  inhabitant,  at  the  time 
of  his  death,  of  the  county  wherein  letters  have  been  applied  for. 
By  this  subdivision  the  intestate  is  not  required  to  have  assets. 
This  clause  stands  alone  and  is  in  no  manner  connected  with  or 
dependent  upon  the  other  clauses  of  the  statute."^ 

But  where  the  deceased  intestate  was  not  a  resident  of  this 
state,  at  the  time  of  his  death,  and  no  assets  belonging  to  his  es- 
tate are  in  this  state  at  the  time  of  the  application  for  letters,  no 
administration  can  properly  be  granted  upon  such  estate;  but  if 
the  letters  are  nevertheless  issued,  such  act  is  coram  non  judice 
and  void,  and  will  in  a  proper  proceeding  be  revoked."" 

Proof  of  some  kind  must  be  made  that  the  person  upon  whose 
estate  administration  is  asked  is  dead.  This  is  a  jurisdictional  fact 
about  which  the  court  should  be  informed  for  there  can  be  no 
valid  administration  upon  the  estate  of  a  living  person,  and  if  ad- 
ministration should  be  granted  in  such  a  case  it  would  be  invalid. 
It  is  true  that  an  unexplained  absence  for  a  period  of  years  may 
justify  an  administration  upon  the  estate  of  such  absentee  but  au- 
thority for  such  proceeding  is  found  in  a  special  statute,  and  not 
under  the  one  here  considered. 

It  must  also  be  made  to  appear  that  the  decedent  died  intestate. 
An  intestate  is  one  who  at  death  leaves  no  valid  will  as  to  either 
his  real  or  his  personal  property.  If  he  leaves  a  will  disposing  of 
either  class  of  his  property  and  not  the  other,  or  any  part  of  his 
property  and  not  all  it  is  a  case  of  partial  intestacy.  There  is  a 
presumption  of  law  in  favor  of  intestacy,  but  no  such  presump- 
tion in  favor  of  partial  intestacy.^' 

="  Wyman    v.    Halstead,    109   U.    S.  Co.  v.  Reeves,  8  Ind.  App.  667,  35  N, 

654,  27  L.  ed.  1068,  3  Sup.  Ct.  417.  E.  199. 

"^Toledo   &c.    R.    Co.   v.    Reeves,   8        ^  Stokesberry  v.  Reynolds,  57  Ind. 

Ind.  App.  667,  35  N.  E.  199.  425 ;   Mortgage  Trust  Co.  v.   Moore, 

"Jeffersonville     &c.      R.      Co.     v.  150  Ind.  465,  50  N.   E.  72;   Korf  v, 

Swayne,  26  Ind.  477;  Toledo  &c.  R.  Gerichs.  145  Ind.  134,  44  N.  E.  24. 


§    26  LETTERS    OF    ADMINISTRATION.  29 

Jurisdiction  is  in  the  county  of  the  decedent's  domicile  at  the 
time  of  his  death  if  he  was  an  inhabitant  of  this  state,  and  letters 
of  administration  issued  upon  his  estate  in  any  other  than  that 
county  are  voidable  and  may  be  revoked  upon  the  application  of 
any  party  in  interest. 

Letters  issued  in  the  wrong  county  are  not  void  and  so  long  as 
they  stand  unrevoked  other  letters  may  not  issue  even  in  the 
proper  county.^*. 

§  26.  Statute  must  be  complied  with. — Authority  to  grant 
letters  of  administration  is  wholly  statutory  and  a  compliance  by 
the  courts,  with  the  provisions  of  the  statute,  set  out  in  this  sec- 
tion, is  necessary  in  granting  letters  of  administration,  otherwise 
an  appointment  made  thereunder  would  be  void.  And  where  let- 
ters of  administration  are  issued  in  a  county  where  they  are  not 
authorized  by  statute,  or  where  letters  so  issued  directly  contra- 
vene the  express  provision  of  the  statute,  the  court  in  which  they 
are  issued  may,  upon  its  own  motion,  institute  proceedings  to  set 
them  aside,  or  it  may  be  done  by  any  person  interested  in  anywise 
in  the  estate,  or  upon  the  suggestion  of  an  amicus  curiae.  The 
jurisdiction  of  the  court  over  the  subject  is  derived  from  these 
provisions  of  the  statute,  and  can  only  be  exercised  under  the  cir- 
cumstances and  in  the  cases  there  provided  for.-^ 

Where  an  intestate  was  domiciled  and  died  outside  of  this  state, 
no  valid  grant  of  letters  of  administration  upon  his  estate  can  be 
made  in  this  state,  unless  such  intestate  left  assets  here  or  assets 
belonging  to  him  have  come  into  this  state  after  his  death. ^^ 

§  27.    Meaning  of  assets. — By  the  term  assets  used  in  this 
statute  is  meant  assets  of  the  intestate,  and  includes  property, 
'*  Razor  v.  Mehl,  25  Ind.  App.  645,        "Razor  v.  Mehl,  25  Ind.  App.  645, 
57  N.  E.  274,  58  N.  E.  734;  Cunning-     57  N.  E.  274,  58  N.  E.  734;  Jeflferson- 
ham  V.  Tuley,  154  Ind.  270,  56  N.  E.     ville  &c.   R.    Co.  v.    Swayne,  26   Ind. 
27;  Coltart  v.  Allen,  40  Ala.   155,  88    477;  Croxton  v.  Renner,  103  Ind.  223, 
Am.    Dec.    757;    Woerner    Am.    Law    2  N.  E.  601;  Williams  v.  Dougherty, 
Admin.,  §  268;  Rice  Am.  Prob.  Law,     39  Ind.  App.  9,  78  N.  E.  1067. 
337;  Williams  v.   Dougherty,  39  Ind.        =^  McCord    v.     Thompson,    92    Ind. 
App.  9,  78  N.  E.  1067 ;  Soules  v.  Rob-    565. 
inson,  158  Ind.  97,  62  N.  E.  999,  92 
Am.  St.  301. 


30  INDIANA    PROBATE    LAW.  §    2"] 

rights  or  choses  in  action  held  by  or  belonging  to  the  intestate  at 
the  time  of  his  death,  and  which,  as  a  part  of  his  estate,  his  ad- 
ministrator is  entitled  to,  in  the  due  administration  of  the  estate, 
for  the  payment  of  debts.-' 

A  right  of  action  under  the  statute  for  damages  against  a  rail- 
road company  for  causing  the  death  of  an  intestate,  is  not  assets 
within  the  meaning  of  this  section;  and  where  such  damages  are 
claimed  as  the  only  assets  of  the  estate,  letters  issued  for  the  pur- 
pose of  such  administration  are  void,  and  will  be  revoked  upon  an 
application  for  that  purpose  by  the  railroad  company.^^  • 

But  this  rule  is  applied  only  in  those  cases  where  the  jurisdic- 
tion of  the  court  to  appoint  an  admini.strator  depends  solely  upon 
the  question  of  assets  of  the  intestate,  and  where  such  intestate 
was  at  tlie  time  of  his  death  a  nonresident  of  this  state.  In  cases 
where  the  person  whose  death  was  wrongfully  caused  was  a  resi- 
dent of  this  state  at  the  time  of  his  death,  valid  letters  of  admin- 
istration may  be  issued  upon  his  estate  for  the  purpose  of  prose- 
cuting the  action  for  damages  in  such  case  authorized,  although 
such  intestate  left  no  assets  in  this  state,  and  none  have  come  in 
since.  "^ 

Where  the  fact  that  assets  of  an  intestate,  who  was  a  nonresi- 
dent at  the  time  of  his  death,  have  been  brought  into  this  state 
after  his  death,  is  relied  on  to  give  a  court  jurisdiction  to  grant 
letters  of  administration  upon  his  estate,  it  must  appear  that  such 
assets  were  brought  into  some  county  of  this  state  in  good  faith. 

■'Toller  on  Executors    137;   Jeffer-  is  founded  on  a  new  grievance,  name- 

sonville    &c.    R.    Co.    v.    Swayne,    26  ly,  causing  the  death,  and  is  for  the 

Ind.  477.  injury  sustained  thereby,  by  the  widow 

^'Jeffersonville      &c.      R.      Co.      v.  and  children,   or  next  of  kin   of  the 

Swayne,  26  Ind.  477.     In  this  case  the  deceased,    for  the   damages   must   in- 

court    had    under    consideration    the  ure  to  their  exclusive  benefit.     They 

question  whether  "assets"  of  a  dece-  are  recovered  in  the  name  of  the  per- 

dent  within  the  meaning  of  this  section  sonal   representative  of  the  deceased, 

would   include   a   claim   for   damages  but  do  not  become  assets  of  the  es- 

against  a  carrier  for  causing  the  death  tate." 

of  such  decedent,  and  in  disposing  of  ="  Toledo    &c.    R.    Co.   v.    Reeves,   8 

the    question    the    court    said :     "The  Ind.  App.  667,  35  N.  E.  199. 
right  of  action  created  by  the  statute 


§    28  LETTERS    OF    ADMINISTRATION.  3 1 

If  property  of  an  intestate  has  been  brought  into  this  state  from 
elsewhere  merely  to  give  a  colorable  jurisdiction,  the  court  should 
refuse  to  grant  letters.^" 

§  28.  Assets  in  different  jurisdictions. — In  the  case  ot 
Borer  v.  Chapman,  119  U.  S.  587,  it  was  held,  that  an  adminis- 
tration of  the  assets  of  a  decedent  situated  in  a  state  other  than 
that  of  his  domicile,  under  the  laws  and  the  courts  of  such  other 
state,  is  merely  ancillary ;  and  although  the  statutes  of  such  state 
and  the  proceedings  under  them  may  purport  to  bar  all  claims 
against  the  estate  of  the  decedent,  assets  finally  distributed  there, 
and  brought  into  the  state  of  the  domicile  of  the  deceased  by  his 
executor  or  legatee,  remain  assets  in  the  state  of  the  domicile  for 
the  payment  of  any  unpaid  creditors  choosing  that  forum;  and 
such  assets  are  impressed  with  a  trust  which  such  a  creditor  has 
the  right  to  have  administered  for  his  benefit. 

But  it  has  been  decided  that  property  legally  situated  within 
one  state,  at  the  time  of  the  death,  and  already  disposed  of  and 
administered  in  its  courts  and  in  accordance  with  its  laws,  cannot 
be  affected  by  administration,  or  the  want  of  it,  in  another  state 
to  which  a  legatee  carries  property  delivered  to  him  by  order  of 
the  probate  court  where  the  estate  was  administered.^^ 

Dift'erent  administrators,  deriving  authority  as  such  from  dif- 
ferent sovereignties,  are  independent  of  each  other,  and  acquire 
rights  over  dift'erent  assets.  There  can  be  no  privity  between 
them.  Each  is  accountable  to  the  tribunal  under  which  he  exer- 
cises his  trust,  and  administration  upon  assets  which  have  prop- 
erly come  to  the  hands  of  an  administrator  under  his  appoint- 
ment, and  for  which  he  is  accountable  to  such  legal  tribunal,  can- 
not be  impaired  or  abridged  by  a  grant  of  administration  to  an- 
other person  in  another  state. 

'"  Schouler,  Extrs.  &  Admrs.  36.  in  the  country  of  the  testator's  domi- 

"  Wells    V.    Wells,    35    Miss.    638;  cilc,  or  there  are  other  creditors  there 

Saurez     v.     Mayor,     2     Sandif.     Ch.  whose  claims   remain  unsatisfied,  the 

(N.  Y.)    173.     In  Spraddling  v.  Pip-  tribunals  of  the  country  in  which  the 

kin,    15    Mo.    118,    it    is    said:      "But,  assets  are  found  will  direct  them  to 

after  the  claims  of  creditors  are  satis-  be    remitted    to    the    country    of    the 

fied,  and  when  the  distributees  reside  domicile  for  further  administration.' 


;^2  INDIANA    PROBATE    LAW.  §    29 

§  29.  Ancillary  administration. — This  i^ives  rise  to  the  doc- 
trine of  ancillary  administration.  The  word  ancillary  means  sub- 
ordinate to  or  subservient.  Ancillary  administration  is  a  local 
and  subordinate  administration  of  such  part  of  the  assets  of  a  de- 
cedent as  are  found  within  a  state  other  than  that  of  his  domicile, 
and  which  the  law  of  the  state  where  they  are  found  requires  to 
be  collected  under  its  authority  in  order  that  they  may  be  applied 
first  to  satisfy  the  claims  of  its  own  citizens,  instead  of  requiring 
the  latter  to  resort  to  the  jurisdiction  of  the  principal  administra- 
tion to  obtain  payment,  the  surplus,  after  satisfying  such  claims, 
to  be  remitted  to  the  place  of  the  principal  administration. ^- 

The  doctrine  of  ancillary  administration  grows  out  of  the  com- 
mon law  rule  that  administrators  could  not  sue  or  be  sued  except 
in  the  country  from  which  tlicir  appointment  was  derived.  In 
theory  our  various  state  jurisdictions  are  foreign  to  each  other, 
but  in  most  of  them,  as  in  ours,  are  statutes  providing  that  for- 
eign executors  and  administrators  may  act  in  the  local  jurisdic- 
tion, sue  and  be  sued  and  perfonn  almost  all  things  imposed  by  the 
local  jurisdiction  upon  administrators  of  its  own  appointment; 
and  as  it  is  the  general  policy  of  the  law  to  have  estates  adminis- 
tered upon  as  simply  and  speedily  as  possible,  there  no  longer  ex- 
ists the  necessity  for  ancillary  administration  that  formerly  did. 
>.  For  these  reasons  ancillary  administrations  are  not  favored  in 
the  law  and  courts  will  avoid  appointing  such  an  administrator 
unless  it  appears  that  such  appointment  is  actually  necessary  to 
protect  the  interests  of  citizens  resident  in  the  state  where  the  ap- 
pointment is  asked. ^^ 

But  where  several  administrations  have  been  granted  it  then 
becomes  of  importance  to  understand  the  legal  relations  and 
rights  as  between  the  ancillary  and  the  principal  administration. 
It  is  the  rule  without  exception,  that  the  state  or  country  of  the 
decedent's  domicile  at  his  death  is  the  place  of  the  principal  ad- 
ministration, all  other  administrations  are  ancillary  or  subordi- 
nate to  this.     That  is,  the  ancillary  administration  is  subordinate 

^"Century  dictionary.  "Mn  re,  McCreight,  6  X.  P.  (Ohio) 

481. 


§    30  LETTERS    OF    ADMIXISTRATION.  33 

or  auxiliary  to  the  original  one  in  so  far  as  the  collection  and  dis- 
tribution of  the  assets  in  that  jurisdiction  is  concerned,  but  as  to 
the  manner  of  such  collection  and  the  application  of  them  to  the 
payment  of  the  debts  within  the  jurisdiction  of  the  ancillary  ap- 
pointment, such  ancillary  administration  is  entirely  independent 
of  the  original  one.  It  is  the  purpose  of  an  ancillary  administra- 
tion to  apply  the  assets  found  in  that  particular  state  for  the  bene- 
fit of  resident  creditors  before  permitting  the  funds  of  the  dece- 
dent to  be  remitted  out  of  the  jurisdiction  of  such  state/* 

§  30.  Powers  and  duties  of  ancillary  administrator. — Each 
portion  of  the  estate  should  be  administered  in  the  state  in  which 
possession  is  taken  pursuant  to  lawful  authority.  And  when  ad- 
ministrations upon  the  estate  of  a  decedent  are  granted  in  differ- 
ent states,  that  granted  in  the  state  in  which  the  intestate  was 
domiciled  is  the  principal  or  primary  administration,  and  the 
others  are  ancillary." 

The  administration  in  each  state  is  controlled  exclusively  by 
the  laws  of  that  state.  The  administration  in  one  state  is  wholly 
independent  of  that  in  any  other  state;"  nor  does  the  fact  that 
administration  has  been  granted  in  one  state  have  any  effect  to 
impair  or  abridge  an  administration  granted  in  another;"  nor  is 
there  any  privity  between  the  different  administrations." 

Each  administration  is  limited  to  the  property  situated  in  its 
own  jurisdiction,"  nor  can  a  judgment  against  one  administra- 

•*  Swearingen  v.  Morris,  14  Ohio  St.  Stacy  v.  Thrasher,  6  How.  (U.  S.)  44, 

424;  Williams  v.  Welton,  28  Ohio  St.  12  L.  ed  ZZ7 ;  Hill  v.  Tucker,  13  How. 

451.  (U.  S.)  458,  14  L.  ed.  223;  Creswell 

"McCord  V.  Thompson,  92  Ind.  565.  v.  Slack,  68  Iowa  110,  26  N.  W.  42. 

*  Sherman  v.  Page,  85  N.  Y.  123.  **  McCord   v.    Thompson,    92     Ind. 
"Naylor  v.  Moody,  2  Blackf.  (Ind.)  565;  Reynolds  v.  McMullen,  55  Mich. 

247;    Henderson    v.    Clarke,    4    Litt.  568,  54  Am.  Rep.  386.    It  is  the  object 

(Ky.)  277;  Grant  v.  Reese,  94  N.  Car.  of  the  ancillary  administrator  to  ad- 

720;   Aspden  v.  Nixon,  4  How.    (U.  minister  the  assets  found  within  the 

S.)    467,    11    L.    ed.    1059;    Pond    v.  state  and   remit  the  proceeds  to  the 

Makepeace,  2  Met.   (Mass.)   114,  Mc-  place  of  the  principal  administration. 

Lean  v.  Meek,  18  How.   (U.  S.)    16,  But  if  there  are  creditors,  the  courts 

IS  L.  ed.  277.  having  control  of  such  ancillary  ad- 

*  Taylor  v.  Barron,  35  N.  H.  484;  ministration  will  not  allow  the  estate 

3 — Pro.  Law. 


34 


INDIANA    PROBATE    LAW. 


§    30 


tor  in  one  jurisdiction  be  a  lien  upon  or  affect  assets  under  the 
control  of  an  administrator  in  another  jurisdiction. ^° 

After  the  collection  and  reduction  of  the  assets  to  money, 
and  the  payment  of  all  the  debts  and  liabilities  of  the  estate  at  the 
place  of  the  ancillary  administration,  such  ancillary  administra- 
tion then,  as  to  distribution  of  the  surplus,  if  any,  becomes  sub- 
ordinate to  the  law  of  the  place  of  the  principal  administration 
in  so  far  at  least  as  the  proceeds  arising  from  the  personal  prop- 
erty is  concerned.  The  rule  being  that  personal  estate  shall  be 
distributed  to  the  heirs  according  to  the  law  of  the  domicile  of  the 
decedent."  It  is  only  at  the  time  of  distribution  that  the  law  of 
the  place  of  the  primary  administration  is  to  be  taken  into  con- 
sideration by  an  ancillary  administrator. 

Such  law  then  becomes  important  as  the  disposition  of  the  pro- 
ceeds of  the  personal  property  and  the  proceeds  of  the  real  estate 
dift'er  widely.  If  the  assets  in  the  hands  of  the  ancillary  adminis- 
trator are  derived  from  the  sale  of  real  estate,  they  are  impressed 


to  be  remitted  to  the  foreign  state  un- 
til such  creditors  are  first  paid.  If  the 
estate  is  solvent  such  creditors  are 
paid  in  full,  and  if  it  is  not  they  are 
paid  pro  rata,  taking  the  entire  estate 
and  the  entire  liabilities  into  account. 
Williams  v.  Welton,  28  Ohio  St.  451. 
"Low  V.  Bartlett,  8  Allen  (Mass.) 
259;  Judy  v.  Kelley,  11  111.  211,  50 
Am.  Dec.  455 ;  Rentschler  v.  Jamison, 
6  Mo.  App.  135.  The  judgment  of  the 
court  of  one  state  against  the  admin- 
istrator of  a  deceased  person  ap- 
pointed by  the  courts  of  that  state 
which  establishes  a  claim  against  such 
decedent's  estate,  is  not  even  prima 
facie  evidence  of  the  validity  of  the 
claim  as  against  lands  situated  in  an- 
other state.  McGarvey  v.  Darnall, 
134  111.  367,  25  N.  E.  1005,  10  L.  R.  A. 
861 ;  Smith  v.  Smith,  174  111.  52,  50  N. 
E.1083,  43  L.  R.  A.  403.  A  judgment 
recovered    against    the    administrator 


of  a  deceased  person  in  one  state  is  no 
evidence  of  a  debt  in  a  subsequent 
suit  by  the  same  plaintiff  in  another 
state,  either  against  an  administrator, 
whether  the  same  or  a  different  person 
appointed  there,  or  against  any  other 
person  having  assets  of  the  deceased. 
Johnson  v.  Powers,  139  U.  S.  156,  35 
L.  ed.  112,  11  Sup.  Ct.  525;  Stacy  v. 
Thrasher,  6  How.  (U.  S.)  44,  12  L. 
ed.  Z2>7.  It  cannot  even  be  prima  facie 
evidence  of  a  debt.  Braithwaithe  v. 
Harvey,  27  L.  R.  A.  101.  The 
allowance  of  a  claim  in  another  juris- 
diction against  a  decedent's  estate 
does  not  place  the  party  in  the  posi- 
tion of  a  judgment  creditor  against 
the  same  estate  in  local  courts. 
Strauss  v.  Phillips,  189  111.  9,  59  N.  E. 
560;  Jones  v.  Jones,  15  Te.x.  463,  65 
Am.  Dec.  174;  Slauter  v.  Chenowith, 
7  Ind.  211. 
"  Russell  V.  Madden,  95  111.  485. 


§    31  LETTERS   OF   ADMINISTRATION.  35 

with  the  character  of  real  estate  and  their  distribution  is  con- 
trolled by  the  law  of  the  place  where  the  real  estate  is  situated.*^ 

§  31.  To  whom  letters  shall  be  granted. — At  any  time  after 
the  death  of  an  intestate,  the  proper  clerk  or  court  having  exam- 
ined the  person  applying  for  letters  and  such  persons  as  may  be 
deemed  proper  to  be  examined,  under  oath,  touching  the  time 
and  place  of  the  death  of  the  intestate,  whether  he  left  a  will,  and 
concerning  the  qualifications  of  such  person,  and  there  being  no 
such  will,  shall  grant  letters  of  administration,  in  their  order — ■ 
1st,  to  the  widow  or  widower:  2d,  to  the  next  of  kin;  3d,  to  the 
largest  creditor  applying  and  residing  in  the  state;  4th,  if  no  per- 
son entitled  to  administer  shall  apply  within  twenty  days  after  the 
death  of  the  intestate,  the  clerk  or  court  shall  appoint  a  competent 
inhabitant  of  the  county,  to  whom  letters  shall  issue. *^ 

After  the  lapse  of  twenty  days  from  the  death  of  the  intestate, 
letters  may  issue  to  any  competent  person  without  preference ;  but 
letters  issued  before  the  expiration  of  twenty  days,  to  any  person 
other  than  the  widow,  without  her  relinquishment  of  her  right  to 
administer,  while  not  void  are  voidable,  and  upon  her  application 
such  letters  will  be  revoked  and  granted  to  her.**  The  relinquish- 
ment of  her  right  to  administer  should  be  in  writing  and  filed 
with  the  clerk.    And  this  same  rule  will  apply  to  the  widower. 

Among  persons  equally  entitled  to  the  administration,  the  court 
should  exercise  its  discretion  and  appoint  the  most  suitable.  And 
in  considering  the  question  of  suitableness  the  court  should  look 
to  the  moral  fitness  and  integrity,  business  experience,  solvency 
or  insolvency,  sex,  adverse  interest,  etc.,  of  the  applicant.     A 

*•  Woerner    Am.    Law    Admin.,    §§  wrong  party  and  then  commit  it  to  the 

374,  375.  right,  the  second  grant  is  a  repeal  of 

"  Burns'  R.  S.  1908,   §  2742 ;  Jones  the  first  without  any  sentence  of  revo- 

V.    Detchon,    91    Ind.    154;    Baugh    v.  cation ;  but  in  other  cases  it  is  held  that 

Boles,  66  Ind.  376.  the  first  is  not  avoided  except  by  ju- 

**  Mills  V.  Carter,  8  Blackf.  (Ind.)  dicial  sentence.  And  the  practice  is 
203.  Toller  on  Executors,  126:  "Some  to  call  in  and  revoke  the  first  admin- 
authorities  maintain  that  if  the  ordi-  istration  before  the  second  is  grant- 
nary    commit    administration    to    the  ed." 


36  INDIANA    PROBATE   LAW.  §31 

large  discretion  is  vested  in  the  court,  and  unless  manifestly 
wrong  its  conclusion  will  not  be  disturbed.*' 

Personal  suitableness  is  a  very  important  element,  whether  in 
determining  the  appointment  as  between  the  widow  and  next  of 
kin  of  an  intestate,  or  when  one  or  more  next  of  kin  alone  are  con- 
cerned." 

The  appointment  of  an  administrator  must  be  left  largely  to 
the  sound  discretion  of  the  trial  judge.  As  he  has  direct  control 
over  the  estate  he  can  better  judge  of  the  capability  of  the  parties 
applying  for  letters,  and  will  know  who  will  best  serve  the  inter- 
est of  the  estate,  and  so  long  as  there  is  no  abuse  of  his  discretion, 
his  exercise  of  it  will  not  be  interfered  with."  In  Wallis  v. 
Cooper,  123  Ind.  40,  23  N.  E.  977,  the  court  said:  "The  court 
has  a  wide  discretion  in  matters  concerning  the  appointment  of 
administrators  and  the  appellate  court  will  not  control  that  discre- 
tion nor  interfere  with  its  exercise  except  where  it  has  been 
abused." 

As  the  above  statute,  however,  is  mandatory,  the  court's  dis- 
cretion is  limited  in  choice  to  some  one  in  the  order  of  preference, 
and  if  the  application  is  made  the  court  can  only  look  to  the  ques- 
tion of  qualification.*® 

After  the  lapse  of  twenty  days  from  the  death  of  a  decedent, 
V  any  creditor  of  such  decedent  has  the  right  to  require  the  ap- 
^  pointment  of  an  administrator,  and  it  is  not  necessary  that  he 
take  such  appointment  on  himself.  Prior  to  the  expiration  of  the 
twenty  days,  however,  creditors  are  in  the  class  of  preferred  per- 
sons and  entitled  to  demand  appointment  for  themselves,  pro- 
vided no  one  with  a  right  superior  to  theirs  has  applied. 

It  is  the  duty  of  an  heir,  or  of  a  creditor,  who  may  not  care  to 
take  administration  of  the  estate  on  himself,  to  see  that  an  admin- 
istrator is  appointed  after  the  expiration  of  the  twenty  days,  but 
such  appointment  may  then  be  made  by  the  proper  officer  as  a 

« Wallis  V.  Cooper,  123  Ind.  40,  23  "Bentley  v.  Jarrell,  41  Ind.  App. 
N.  E.  977.  586,  84  N.  E.  548. 

**  Schouler  Extrs.  &  Admrs.  137.  "  Shrum  v.   Naugle,  22  Ind.   App. 

98,  53  N.  E.  243. 


§    32  LETTERS    OF   ADMINISTRATION.  37 

matter  of  law  irrespective  of  whether  an  application  is  made  by 
any  one  or  not. 

Neither  the  creditor  nor  heir  may  care  to  take  upon  himself 
the  duties,  obligations,  and  hazards  incident  to  the  collection  of 
the  assets  of  an  estate  and  their  proper  distribution,  but  either  has 
the  right  to  compel  the  appointment  of  an  administrator.  If 
there  is  no  appointment,  or  no  application  made  for  one,  within 
the  twenty  days,  then  the  duty  devolves  upon  the  proper  court  or 
clerk  to  appoint  some  one,  and  the  person  so  appointed  need  not 
belong  in  any  of  the  preferred  classes." 

§  32.  Same — Statute  mandatory. — The  above  statute  com- 
mands, not  merely  directs,  that  letters  shall  be  granted  to  the  next 
of  kin,  and  unless  there  is  some  proper  reason  for  disregarding 
it  a  court  w^ould  not  be  justified  in  denying  a  kinsman's  petition, 
and  conferring  the  administration  upon  a  stranger."^^  If  the  next 
of  kin  do  not  select  an  administrator  any  creditor  may  do  so,  but 
a  failure  on  the  part  of  those  interested  to  select  and  have  an  ad- 
ministrator appointed  does  not  warrant  the  presumption  that  the 
decedent  left  no  personal  property."^'  The  proper  clerk  has  au- 
thority to  grant  letters  of  administration  in  vacation  where  the 
right  to  such  administration  is  not  controverted,  and  the  court  is 
bound  to  ratify  such  appointment  unless  some  valid  objection  is 
made  to  it." 

This  statute  contemplates  that  the  clerk  shall  keep  court  open 
during  vacation  and  make  such  appointment ;  but  by  its  express 

*  Hildebrand    v.    Kinney,    172    Ind.  the  county,'  as  a  duty  imposed  by  ex- 

447.  87  N.  E.  832.  press  statute." 

"The  creditor  applying  within  the  '"  Hayes  v.  Hayes,  75  Ind.  395. 
twenty  days  signifies  his  willingness  "  Lovering  v.  King,  97  Ind.  130.  In 
to  assume  the  duties  and  obligations  Wilson  v.  Davis,  Zl  Ind.  141,  the 
of  the  trust,  and  he  must  be  appointed  court  says :  "The  statute  secures  to 
if  otherwise  within  the  statute;  but  the  creditor  the  right  to  take  out  let- 
after  the  twenty  days  he  may  procure  ters,  if  no  preferred  party  shall  do 
an  appointment  without  assuming  any  so  within  a  limited  time.' 
such  obligations  himself,  by  placing  "Brown  v.  King,  2  Ind.  520.  In 
upon  the  court  or  clerk  the  duty  of  Lee  v.  Ice,  22  Ind.  384,  the  court  held 
appointing  'a  competent  inhabitant  of  that   where   letters   were   granted  by 


38 


INDIANA    PROBATE   LAW. 


32 


terms  the  clerk  is  limited  in  making  such  appointment  to  residents 
of  the  county  where  none  entitled  to  preference  make  application 
for  letters  within  the  twenty-day  period." 

This  statute  is  mandatory,  and  where  one  entitled  by  prefer- 
ence applies  within  the  time  specified,  and  is  eligible  and  qualified, 
the  court  has  no  discretion  to  refuse  his  request  and  confer  the 
appointment  on  a  stranger.^* 

Letters  must  be  granted  to  those  whom  the  statute  declares  en- 
titled thereto,  the  widow,  the  next  of  kin,  the  largest  creditor,  if 
he  be  a  resident  of  the  state,  and  regardless,  too,  whether  they 
are  residents  of  the  county  or  not.^^ 

Letters  of  administration  cannot  be  legally  granted  and  con- 
firmed while  other  letters  granted  and  confirmed  to  another  ad- 
ministrator remain  in  full  force  and  unrevoked.'"'" 


the  clerk  in  vacation,  the  court  at 
the  next  succeeding  term  might  re- 
voke the  same  without  notice  to  the 
appointee  of  the  clerk. 

''  Kinnick  v.  Coy,  40  Ind.  App.  139, 
81  N.  E.  107. 

"Mills  V.  Carter,  8  Blackf.  (Ind.) 
203;  Hays  v.  Vickery,  41  Ind.  583; 
Jones  V.  Bittinger,  110  Ind.  476,  11  N. 
E.  456;  Andis  v.  Lowe,  8  Ind.  App. 
687,  34  N.  E.  850. 

■^  Kinnick  v.  Coy,  40  Ind.  App.  139, 
81  N.  E.  107;  Shrum  v.  Naugle,  22 
Ind.  App.  98,  53  N.  E.  243. 

'"Joaes  V.  Bittinger,  110  Ind.  476, 
11  N.  E.  456.  The  court  in  Landers 
V.  Stone,  45  Ind.  404,  says:  "When 
there  is  no  will,  there  must  be  an  ad- 
ministrator. There  cannot  be,  in  the 
same  estate,  both  an  executor,  or  an 
administrator  with  the  will  annexed, 
and  an  administrator.  The  executor 
is  succeeded  by  the  administra- 
tor with  the  will  annexed,  and 
the  administrator  with  the  will 
annexed  is  succeeded  by  the  adminis- 
trator de  bonis  non,  with  the  will  an- 


nexed. They  all  act  under  and  in 
pursuance  to  the  will.  When  there  is 
no  will,  an  administrator  is  appointed 
and  is  succeeded  by  an  administrator 
dc  bonis  non,  and  they  act  under  and 
in  pursuance  of  the  statute.  *  *  * 
That  is  to  say  when  there  is  a  will 
there  shall  be  either  an  executor  or 
an  administrator  with  the  will  an- 
nexed, and  his  authority  shall  extend 
to  and  embrace  all  the  property  of 
the  decedent,  without  reference  to 
whether  it  is  all  disposed  of  by  the 
will  or  not ;  and  when  there  is  no 
will,  there  is  simply  an  administrator, 
whose  authority  extends  to  and  em- 
braces all  the  property  of  which  the 
decedent  died  possessed." 

In  the  case  of  Jones  v.  Bittinger, 
110  Ind.  476,  11  N.  E.  456,  the  court 
held  that  although  letters  were  grant- 
ed to  a  person  not  entitled  thereto 
before  the  expiration  of  twenty  days 
after  the  death  of  a  decedent,  yet 
letters  could  not  be  granted  to  the 
proper  person  while  the  letters  im- 
properly granted  were  unrevoked. 


§    33  LETTERS    OF    ADMINISTRATION.  39 

§  33.  Void  and  voidable  letters. — Letters  of  administra- 
tion granted  out  of  the  order  prescribed  by  this  statute,  are  not 
void,  but  at  most  are  only  voidable,  and  until  revoked  or  set  aside 
in  a  proper  proceeding  brought  for  that  purpose,  no  error  is  com- 
m.itled  in  refusing  to  grant  letters  to  another  person,  although 
such  person's  right  may  be  prior  to  that  of  the  one  to  whom  such 
letters  have  been  granted." 

As  a  general  rule  the  court  granting  letters  of  administration 
will  be  presumed  to  have  lawfully  exercised  its  jurisdiction,  and 
its  order  made  in  such  matter  cannot  be  attacked  collaterally.^^ 
But  where  it  appears  that  the  court  had  no  jurisdiction  by  reason 
of  the  non-residence  of  the  intestate,  or  because  such  intestate  had 
no  property  within  the  jurisdiction  of  the  court,  or  for  any  other 
reason,  such  appointment  is  null  and  void  and  may  be  attacked 
even  in  a  collateral  proceeding."'"  And  a  grant  of  letters  which  is 
originally  void  acquires  no  validity  from  acquiescence  and  lapse 
of  time.*'"  And  where  such  letters  are  void  for  want  of  jurisdic- 
tion, a  court  that  has  jurisdiction  may  grant  letters  of  adminis- 
tration, though  the  former  letters  have  not  been  revoked.'^' 

Letters  of  administration  cannot  be  legally  granted  and  con- 
firmed while  letters  testamentary,  which  have  been  granted  to  one 
named  in  a  will  as  executor,  remain  in  force.  The  granting  of  let- 
ters testamentary,  or  of  administration,  is  a  judicial  act;  and 
where  the  court  that  granted  them  had  jurisdiction,  individuals 
and  courts  are  bound  to  respect  the  authority  of  such  letters." 

An  appointment  must  conform  strictly  to  the  provisions  of  the 
statute,  or  the  letters  granted  will  be  void.^^     But  while  the  ap- 

^^  Mills  V.  Carter,  8  Blackf.    (Ind.)  Wright,  18  Ga.  173;  Paul  v.  Willis,  69 

203;    Hays   v.   Vickery,  41    Ind.   583;  Tex.  261,  7  S.  W.  357;  Jeffersonville 

Jones  V.  Bittingcr,  110  Ind.  476,  11  N.  &c.  R.  Co.  v.  Swayne,  26  Ind.  477. 

E.  456.  "^Holyoke     v.     Haskins,     5     Pick. 

**  Ferguson    v.    State,    90    Ind.    38;  (Mass.)  20,  16  Am.  Dec.  372. 

Jones  V.   Bittinger,   110   Ind.   476,   11  ""Ex  parte  Barker,  2  Leigh   (Va.) 

N.  E.  456;  Lee  v.  Templeton,  11  Ind.  719. 

315.  ""Ray  v.  Doughty,  4  Blackf.  (Ind.) 

"People's  Sav.  Bank  v.  Wilcox,  15  115;  Landers  v.  Stone,  45  Ind.  404. 

R.  I.  258,  3  Atl.  211,  2  Am.  St.  894;  ^^  Jeffersonville     &c.      R.      Co.     v. 

Sigourney  v.  Sibley,  22  Pick.  (Mass.)  Swayne,  26  Ind.  477. 
507,    II    Am.    Dec.    762;    Griffith    v. 


40  INDIANA    PROBATE    LAW.  §    34 

pointment  of  an  administrator  may  be  irregular,  and  in  a  direct 
proceeding  for  the  purpose  of  revoking  his  letters  such  appoint- 
ment would  be  declared  void,  yet  such  appointment  cannot  suc- 
cessfully be  attacked  in  a  collateral  proceeding."*  The  removal  of 
an  administrator  from  this  state  after  he  has  been  appointed  and 
qualified  authorizes  the  courts  to  vacate  his  trust.®** 

§  34.  Who  is  to  be  preferred. — The  preference  within  the 
twenty  days  is  always  first  to  the  widow  or  widower  of  the  in- 
testate, then  to  the  next  of  kin.  Who  are  to  be  considered  as 
next  of  kin  within  the  meaning  of  the  statutes  is  not  so  clear.  The 
better  order  would  seem  to  require  that  letters  be  granted,  first 
to  the  children  of  the  intestate,  if  any,  who  are  of  legal  age  and 
properly  qualified.  Where  none  of  the  children  desire  to  ad- 
minister, or  are  not  qualified,  then  if  the  intestate's  parents  are 
living,  letters  should  be  granted  one  of  them  under  the  same  con- 
ditions as  to  the  children,  and  after  the  parents  to  the  brothers 
or  sisters  of  the  intestate. 

The  English  rule  is,  first,  children  and  their  lineal  descend- 
ants to  the  remotest  degree ;  second,  the  parents  of  the  deceased ; 
third,  brothers  and  sisters;  fourth,  grandfathers  and  grand- 
mothers ;  fifth,  uncles  or  nephews,  great  grandparents,  and  sixth, 
cousins.  This  same  order  generally  obtains  throughout  this 
country.®'' 

This  statute  which  fixes  the  order  of  preference  in  the  right  to 
administer  upon  a  decedent's  estate  is  founded  upon  the  proposi- 
tion that  the  heirs  and  the  creditors  are  interested  in  the  estate, 
and  that  in  a  sense  it  is  their  property  that  is  to  be  administered 
upon,  for  after  the  debts  and  liabilities  of  the  decedent's  estate 
are  paid,  the  heirs  own  the  property,  and  until  their  debts  are 
paid  the  creditors  have  such  right  and  interest  in  a  decedent's 
property  as  permits  them  to  compel  its  application  to  the  payment 
of  their  debts.     For  these  reasons  the  statute  gives  to  those  per- 

"^  Ferguson  v.  State,  90  Ind.  38.  ""  Williams     Extrs.    421 ;     Schouler 

"=  Bums'  R.  S.  1908,  §  2742.  Extrs.  &  Admrs.  133. 


§    34  LETTERS    OF    ADMINISTRATION.  4I 

sons  a  preference  in  the  administration.'''  And  in  so  far  as  the 
order  of  preference  is  concerned  the  statute  is  mandatory  and 
leaves  no  discretion  in  the  court  as  to  the  class  from  which  a  se- 
lection must  be  made,  if  the  application  is  presented  within  the 
time.*'® 

It  has  been  held  that  a  guardian,  whose  ward,  if  of  age,  would 
be  entitled  to  letters  of  administration,  will  be  entitled  to  such  let- 
ters in  the  right  of  such  ward,  the  court  saying: 

"It  is  the  rule  at  common  law  that  the  trustee  or  guardian  of 
an  infant,  or  non  compos,  who  would  otherwise  be  entitled  to  ad- 
minister upon  an  estate,  was  entitled  to  administer  in  the  right  of 
his  ward  or  cestui  que  trust,  and  in  every  case  in  which  the  ques- 
tion has  arisen  it  is  uniformly  held  that  the  guardian  of  an  infant, 
who,  if  of  age,  would  be  entitled  to  administer  upon  an  estate,  is 
entitled  as  of  right  to  such  administration.  The  question  has 
never  heretofore  arisen  in  this  state,  but  we  feel  impelled  to  hold, 
in  unison  with  the  current  of  authorities  upon  the  question,  that 
in  this  state,  the  guardian  of  an  infant  who,  if  of  age,  would  be 
entitled  to  administer,  is  in  right  of  his  ward  entitled  to  letters  of 
administration  in  preference  to  strangers;  and  that  he  stands,  so 
far  as  the  question  of  his  right  to  administer  upon  the  estate  is 
concerned,  in  the  shoes  of  his  ward,  and  to  that  extent  represents 
his  ward.""'' 

•^  Kinnick  v.  Coy,  40  Ind.  App.  139,  priority."     Cooper  v.  Cooper,  43  Ind. 

81   N.  E.   107;   Cooper  v.  Cooper,  43  App.    620,    88    N.    E.    341;    Curry   v. 

Ind.  App.  620.  88  X.  E.  341.  Plessinger,  —  Ind.  App.  — ,  96  N.  E. 

•^Andis  V.  Lowe,  8  Ind.  App.  687,  190;  Shrum  v.  Naugle,  22  Ind.  App. 

34  X.  E.  850.     In  this  case  the  court  98,  53  X.  E.  243. 

said :     "Other   things   being   equal,    it  ^  Kinnick  v.  Coy,  40  Ind.  App.  139, 

is  doubtless  the  policy  of  the  law  that  81  X.  E.  107;  Mowry  v.  Latham,  17 

where  there  is  no  widow  or  widower  R.  I.  480,  23  Atl.  13 ;  Boyd  v.  Cloud, 

of  the  decedent,  and  there  are  broth-  5  Pen.  (Del.)  479,  62  Atl.  294;  Lang- 

ers  and  sisters,  the  former  shall  have  an  v.  Bowman,   12  S.  &  M.   (Miss.) 

the    prior    right    to    administer    upon  715. 

the  estate."    *    *    *  It  is  a  general  principle  governing 

"But   in   order   to   bring  the   appli-  the  granting  of  letters  of  administra- 

cant  for  revocation  and  appointment  tion,   that   the   administration   should 

within    the    letter   and    spirit    of    the  be   committed   to   those  who   have  a 

statute,  he  must  show  in  his  petition  beneficial  interest  in  the  property  to 

the  facts  that  give  him  the  right  of  be    administered   upon.      1    Woerner, 


42  INDIANA    PROBATE    LAW.  §    35 

^  35.  Right  of  husband  or  wife. — At  common  law  a  hus- 
band being  entitled  to  all  his  wife's  personal  estate  was  deemed 
the  proper  person  to  administer  on  her  estate,'"  and  this  prefer- 
ence is,  by  statute,  maintained  in  this  state.  This  preference 
would,  perhaps,  be  defeated  by  such  misconduct  of  the  husband  as 
would  bar  him  from  taking  any  part  of  tlic  wife's  estate  under 
the  law."'  And  he  would,  perhaps,  also  be  barred  from  such  ad- 
ministration by  an  antenuptial  agreement  by  which  he  has  de- 
prived himself  of  any  interest  in  his  wife's  estate.'" 

Upon  the  husl)and's  estate,  the  administration  is.  by  preference, 
first  to  the  widow.  She  must,  however,  actually  be  his  widow. 
If  there  has  been  no  valid  marriage,  or  has  been  an  absolute 
divorce,  she  would  have  no  right  to  the  administration.'^ 

A  widow's  right  to  administer  may  also  be  barred  by  an  ante- 
nuptial agreement.'* 

The  mere  abandonment  by  one  spouse  of  the  other  does  not  de- 
stroy the  right  to  administer." 

A  marriage  which  is  absolutely  void  confers  no  right  upon 
either  party  to  it ;  but  if  the  marriage  is  only  voidable  and  has  not 
been  avoided  before  death,  the  surviving  spouse  would  have  the 
right  to  administer.'*' 

Amer.     Law     of     Admin.     (2d.  ed.),  hand,  suffer  the  consequence  of  waste, 

§    235.      It    is    said    in    1     Williams  improvidence  or  mismanagement,  have 

Executors    (7th    Am.    ed.)    512:     "It  the  highest  interest  and  most  influen- 

has   always   been   considered,  both  in  tial  motive  to  administer  the  property 

the  common-law  and  spiritual  courts,  correctlj'. 

that  the  object  of  the  statutes  of  ad-  ™  Schouler  Extrs.  &  Admrs.  127. 

ministration   is   to   give   the  manage-  ''Burns'  R.  S.   1908,  §§  3034,  3035, 

ment   of   the  property  to   the  person  3036. 

who  has  the  beneficial  interest  in  it."  ''Bray  v.  Dudgeon,  6  Munf.  (Va.) 

The  paramount  object  and  purpose  of  132;    Fowler    v.    Kell,    14    S.    &    M. 

our  statute,  and  of  all  statutes,  in  fix-  (Miss.)    68;    Ward   v.    Thompson,   6 

ing  the  order  of  preference  in  which  Gill  &  J.  (Md.)  349. 

letters     of     administration     shall     be  "  Byrnes  v.  Dibble,  5  Redf.  (N.  Y.) 

granted,  is  to  secure  to  those  having  383;    O'Gara  v.   Eisenlohr,  38  N.   Y. 

a  beneficial  interest  in  the  property  to  296;  Odiorne's  Appeal,  54  Pa.  St.  175, 

be  administered  upon  the  right  to  ad-  93  Am.  Dec.  683n. 

minister.     It   is   to  be   supposed  that  ''  IMaurer  v.  Maurer,  5  Md.  324. 

those  who  will  reap  the  benefit  of  a  "  Coover's  Appeal,  52  Pa.  St.  427; 

wise,  speedy  and  economical  adminis-  Nusz  v.  Grove,  27  Md.  391. 

tration  of  the  estate,  or,  on  the  other  '"Browning  v.  Reane,  2  Phillim.  69; 


§    36  LETTERS    OF    ADMINISTRATION.  43 

§  36.  The  right  of  others. — As  a  rule,  the  right  of  adminis- 
tration follows  the  right  of  property,  and  the  law  usually  selects 
for  the  purpose  of  administration  persons  in  their  order  of  pre- 
ference for  distribution,  so  if  neither  the  widow  or  widower  of 
a  decedent  is  qualified  to  administer,  or  have  renounced  the  right, 
the  preference  is  to  the  next  of  kin  in  the  order  above  set  out. 
Where,  for  any  reason,  such  administration  cannot  be  granted 
to  the  nearest  of  kin,  the  law  will  select  the  next  in  order. 

After  the  next  of  kin  preference  is  given  to  the  largest  creditor 
applying  who  is  a  resident  of  this  state.  But  where  both  apply 
for  letters,  a  distributee  must  always  be  preferred  to  a  creditor." 

A  claim  which  has  accrued  after  the  death  of  the  decedent,  as 
for  funeral  expenses,  is  sufficient  to  entitle  one  to  the  right  to  ad- 
minister;" but  a  debt  assigned  after  the  death  of  the  decedent 
does  not  entitle  the  assignee  to  such  right.'" 

The  preference  above  outlined  is  for  only  twenty  days  after  the 
death  of  the  intestate.  After  the  lapse  of  such  time,  if  no  appli- 
cation is  made  by  those  entitled,  any  competent  person  who  is  an 
inhabitant  of  the  county  may  be  appointed.-"' 

As  the  right  to  administer  follows  the  right  to  the  personal 
property,  a  creditor  is  entitled  to  preference  in  administration 
over  a  relative  of  the  decedent,  who  although  he  may  be  of  next 
of  kin  to  such  decedent,  has  no  interest  in  the  estate  to  be  admin- 
istered upon.^^ 

A  creditor  being  appointed  may  associate  with  himself  in  the 
administration  any  other  person  or  persons  found  competent  un- 
der the  statute,  and  such  choice  will  not  be  confined  to  creditors 
nor  is  it  limited  to  persons  having  precedence.^" 

Parker's  Appeal,  44  Pa.  St.  309;  White  ''Cooper  v.    Cooper,   43   Ind.   App. 

V.  Lowe.  1  Redf.  (N.  Y.)  376.  620,  88  N.  E.  341. 

"Hoxall    V.    Lee,    2    Leigh     (Va.)  ^=  Brown  v.  King,  2  Ind.  520. 

267.  Cases    might    arise   where   the    size 

"  Lents  V.  Pilcrt,  60  Md.  296,  45  and  extent  of  the  estate  to  be  admin- 
Am.  Rep.  112  istered,  or  the  conflicting  interests  of 

"Pearce  v.  Castrix,  8  Jones  L.  (N.  heirs  and  creditors,  might  justify  or 

Car.)  71.  demand  the  appointment  of  some  one 

""  Bowen  v.  Stewart,  128  Ind.  507,  26  to  act  with  the  person  who  is  by  law 

X.  E.  168,  28  N.  E.  11.  first  entitled  to  letters  of  administra- 


44 


INDIANA    PROBATE    LAW.  §    37 


In  case  of  a  joint  administration  by  two  or  more  administra- 
tors or  executors,  the  acts  of  one  in  respect  to  the  administration 
are  deemed  to  be  the  acts  of  all  and  are  valid. *^ 

There  is  no  law  which  expressly  forbids  the  appointment  of  the 
same  person  as  administrator  or  executor  of  two  or  more  estates 
or  wills,  nor  is  there  any  provision  requiring  the  resignation  of 
such  officer  or  a  revocation  of  his  letters  in  such  case  because  of 
conflicting  interests,  or  of  claims  in  favor  of  one  estate  and 
against  the  other. *** 

§  37.  The  right  in  the  same  degree. — If  several  of  the  same 
degree  are  entitled  to  letters  the  statute  provides  who  may  be  pre- 
ferred. The  statute  reads:  "If  several  persons  of  the  same  de- 
gree of  kindred  are  entitled  to  administration,  letters  may  be 
granted  to  one  or  more  of  them;  but  males  shall  be  preferred  to 
females,  relatives  of  the  whole  blood  to  those  of  the  half  blood, 
and  unmarried  to  married  women ;  and  any  other  competent  per- 
son may  be  associated  in  such  administration,  the  person  entitled 
thereto  assenting.  If  a  creditor  apply  for  letters  he  shall  prove 
the  amount  of  his  debt  by  affidavit  filed  with  the  court,  and  if  two 
or  more  creditors  are  equally  entitled  the  clerk  or  court  shall  de- 
cide who  is  to  administer."^" 

It  has  been  said  that  the  court  has  a  wide  discretion  in  the  ap- 
pointment of  administrators,  and  in  all  other  matters  pertaining 
to  settlement  of  decedents'  estates,  but  this  discretion  is  not  so 

tion;  but,  in  a  large  majority  of  cases,  administration  to  her.  The  court 
we  think  it  would  be  found  upon  in-  could  not  without  the  assent  of  said 
vestigation,  that,  if  the  estate  could  widow  associate  any  other  person 
not  be  properly  administered  without  with  her  in  the  administration  of  said 
an  associate  administrator,  the  ap-  estate,  but  with  her  assent  he  may  do 
pointment  of  the  person  first  entitled  so.  We  think  it  discretionary  with 
by  law  to  the  appointment  should  the  court  whether  or  not  a  co-admin- 
have  been  refused  in  the  first  instance  istrator  be  appointed  in  such  cases, 
on  the  ground  of  incompetency.  Shrum  v.  Naugle,  22  Ind.  App.  98,  53 

The   widow,   Lucy    Shrum,    having  N.  E.  243. 

applied  for  letters  within  twenty  days  ^  Herald     v.     Harper,     8     Blackf. 

after  the  death  of  her  husband,  she  (Ind.)  170. 

being  a  competent  person,   the  court  ^  Wright  v.  Wright,  72  Ind.  149. 

could  not   refuse   to   issue  letters   of  ''  Burns'  R.  S.  1908,  §  2744. 


0 


8  LETTERS    OF   ADMINISTRATION.  45 


wide  as  to  override  the  statutory  rights  of  those  entitled  to  admin- 
ister. The  phrase  ''next  of  kin"  means  those  who  are  next  of  kin 
at  the  intestate's  death  and  who  would  then  inherit  from  him. 
The  hw  presumes  that  the  person  having  the  first  and  highest  in- 
terest in  the  estate  is  the  widow  of  the  decedent,  and  that  next  to 
her  in  point  of  interest  are  the  heirs  who  would  inherit  the  estate, 
and  that  next  to  these  are  the  creditors  of  the  decedent.®*' 

§  38.  Who  not  entitled  to  letters. — Xo  letters  of  adminis- 
tration shall  be  granted  to  any  person  incompetent  to  serve  as  an 
executor ;  and  no  such  letters  shall  be  granted  to  a  married  woman 
unless  her  husband  file  his  consent  thereto  in  writing  with  the 
clerk  issuing  the  letters,  which  consent  shall  make  him  jointly, 
with  her,  resixDnsible  for  her  acts  in  the  premises.®^ 

Persons  incompetent  to  serve  as  executors  are — ist,  those  un- 
der twenty-one  years  of  age;  2d,  those  who  have  been  convicted 
of  a  felony ;  3d,  those  adjudged  incompetent,  habitual  drunkards, 
or  otherwise  incapacitated.** 

A  corporation  cannot  act  as  an  administrator  unless  expressly 
authorized  so  to  do  by  its  charter  or  the  law  of  its  organization.*® 

Infancy  is  by  these  statutes  made  a  disqualification,  and  the 
converse  of  this  is  perhaps  true,  and  one  in  extreme  old  age 
should  not  be  appointed. 

While  our  statutes  nowhere  make  nonresidence  a  disqualifica- 

•*  Cooper   V.   Cooper,   43   Ind.   App.  spendthrift,     habitual     drunkard,     or 

620.  88  X.  E.  341.  other    person    disqualified    or    unable 

''  Burns'  R.  S.  1908,  §  2745.  from  any  cause  to  manage  their  es- 

■»  Burns'  R.  S.  1908,  §  2737.  tate. 

"Thompson's    Est.,    33    Barb.    (N.  In  the  case  of  Bowen  v.   Stewart, 

Y.)  334;  Porter  v.  Trail,  30  N.  J.  Eq.  128  Ind.  507,  26  N.  E.  168,  28  N.  E. 

106;  Georgetown  College  v.  Browne,  73,  the  court  in  holding  that  it  was 

34    Md.    450.      By    §    10    of    an    act  proper  to  appoint  the  treasurer  of  a 

approved  March  4,  1893    (§  5009,  R.  county  as  administrator  of  an  estate 

S.   1894),  corporations  organized  un-  for   the   purpose   of   collecting   taxes 

der  such  act  are  authorized  to  act  as  due  from  such  estate  to  the  county, 

administrator  of  any  estate,  executor  said:    "He  was  the  representative  of 

of  any  last  will  and  testament  of  any  an  alleged  creditor,  that  was  but  an 

deceased  person,  and  as  guardian  of  artificial   person  to  whom   letters   of 

the  person  or  estate  of  any  minor,  or  administration  could  not  issue." 
of  the  estate  of  any  lunatic,  imbecile, 


46  INDIANA    PROBATE    LAW.  §    38 

tion,  it  would  be  only  following  the  general  policy  of  our  courts 
to  always  give  the  preference  to  residents  of  our  own  state,  for 
the  appointee  should  be  within  the  jurisdiction  of  the  state  to 
whose  laws  he  owes  his  appointment. 

Where  a  person  who  has  the  first  right  to  an  administration  re- 
nounces such  right  and  requests  the  appointment  of  another  per- 
son in  his  stead,  the  court  is  not  bound  to  grant  such  request,  but 
may  exercise  its  discretion.  Xor  does  the  law  favor  an  agree- 
ment, the  consideration  of  which  is  the  relinquishment  by  one 
person  to  another  of  a  right  to  administer  on  the  estate  of  an  in- 
testate."*' 

As  the  appointment  of  an  administrator  does  not  rest  upon  the 
wishes  of  the  deceased  as  does  the  appointment  of  an  executor, 
the  court  has  therefore  a  wider  discretion  in  the  appointment  of 
the  one  than  in  that  of  the  other,  but  in  no  case  should  the  court 
appoint  an  unsuitable  person  or  one  who  is  legally  disqualified. 

It  has  been  held  that  a  professional  gambler  was  not  a  suitable 
person;"^  nor  one  who  is  an  habitual  drunkard;"-  nor  a  reckless 
and  improvident  person ;^^  nor  the  mistress  of  the  intestate;"*  nor 
a  convicted  felon  ;"^  nor  an  insolvent  or  bankrupt ;""  nor  a  person 
whose  interests  are  adverse  to  the  estate;"  nor  one  indebted  to 
the  estate."® 

This  statute  forbids  a  married  woman  acting  as  administrator 
unless  her  husband  consents  thereto,  and  without  his  consent  her 
appointment  would  be  invalid.  It  is  necessary  that  such  consent 
should  be  in  writing  signed  by  him  and  filed  with  the  clerk  issuing 
the  letters. 

The  husband's  consent  to  the  wife  acting  as  administrator  does 

'"Bowers  v.  Bowers,  26  Pa.  St.  74,        "  Plaisance  Est.  Mgr.   (Cal.)   117. 
67  Am.  Dec.  398.  ^^  O'Brien's   Est.,  67  How.   Pr.   (N, 

"McMahon   v.   Harrison,  6   N.   Y.  Y.)   503. 
443.  "^  Cornpropst's    Appeal,    23    Pa.    St. 

"'Elmer   v.    Kechele,    1    Redf.    (N.  537. 
Y.)    472;    Smith  v.    Moore,   3   How.        "State   v.    Reinhardt,   31    Mo.   95; 

(Miss.)  40.  Jones  v.  Whitehead,  66  Ga.  290. 

"'In   re   Cutting,   5   Dem.    (N.   Y.)        "'Successor  of  Chaler,  39  La.  Ann. 

456;  McGregor  v.  McGregor,  3  Abb.  308;  Territory  v.  Valdez,  1  N.  Mex. 

App.  Dec.  (N.  Y.)  92.  533. 


§    39  LETTERS    OF    ADMINISTRATION.  47 

not  constitute  him  a  co-administrator  with  her,  nor  give  him  any 
rights  in  the  administration ;  the  office  remains  entire  in  the  wife 
and  she  may  sue  without  joining  him  in  the  action.^^ 

And  should  an  unmarried  woman,  who  has  been  appointed  ad- 
ministrator, marry  during  the  continuance  of  her  trust  as  such, 
it  then  becomes  necessary  for  her  husband  to  file  his  written  con- 
sent to  her  continuing  to  act  and  if  he  does  not  it  becomes  a  cause 
for  her  removal/ 

§  39.  Waiver  or  renunciation  of  the  right. — No  person 
can  be  compelled  to  take  out  letters  of  administration  however 
perfect  his  right  to  do  so  may  be.  The  right  given  by  statute  may 
be  renounced,  or  the  right  may  be  waived  by  the  neglect  of  the 
person  to  apply  within  the  statutory  time.  It  may  also  be  waived 
expressly.  A  renunciation  of  one's  right  to  administer  should  be 
made  in  writing  and  filed  in  the  court  having  proper  probate  juris- 
diction. Such  renunciation  may  be  absolute  and  unqualified  or  it 
may  be  conditional.  If  made  upon  the  condition  that  a  certain 
person  be  appointed,  and  such  person  is  not  appointed  the  renun- 
ciation then  becomes  void." 

The  court  should  make  no  appointment  of  one  from  a  lower 
class  until  it  has  been  made  to  appear  in  some  way  that  those  of 
the  other  class  are  in  some  way  disqualified,  or  had  waived  or  re- 
nounced their  right  to  administer. 

§  40.  Miscellaneous. — If  letters  of  administration  should 
be  granted  to  one  not  entitled  or  to  one  who  could  not  be  legally 

*"  Jenkins  v.  Jenkins,  23  Ind.  79.  hart  v.  Rinchart,  27  X.  J.  Eq.  475.    So 

'  Bums'  R.  S.  1908,  §  2762.  a  widow,   renouncing  in   favor  of   a 

"  Compensation   cannot  be   collected  particular  person,  is  not  bound  by  the 

for   introducing  a  person  to  another  renunciation  if  this  person  is  not  ap- 

for  the   purpose   of   having  the  per-  pointed.     See  §  92;   McClellan's  Ap- 

son  introduced  appointed  administra-  peal,    16  Pa.  St.   110.     And  a  widow 

tor.      Swiggett  v.   White,   8   Bull.   22.  renouncing    her     right     as     adminis- 

All  the  next  of  kin  having  renounced  tratrix    is,    nevertheless,    on    the  dis- 

in    favor  of   the  eldest   among  them,  covery   of   a   will,   entitled   to   letters 

if  he  would  find  security,  the  appoint-  cum  testamento  annexe,  if  the  execu- 

ment  of  his  nominee,  on  his  failing  to  tors  do  not  qualify.     Brodie  v.  Mit- 

obtain  security,  was  held  void.    Rine-  chell,  85  Md.  516,  Zl  Atl.  169. 


48  INDIANA    PROBATE   LAW.  §    40 

apfKDinted,  all  acts  of  such  appointee  within  the  scope  of  his  au- 
thority, while  such  letters  remain  unsuperseded  and  unrevoked, 
will  be  as  valid  and  binding  as  if  such  authority  was  undisputed.* 

While  courts  should  not  favor  such  applicants,  yet  the  mere 
fact  that  a  person  applying  for  letters  of  administration  can 
neither  read  nor  write  does  not  render  him  ineligible  to  such  ap- 
pointment* 

No  person  will  be  allowed  to  apply  for  letters  of  administra- 
tion, nor  object  to  their  being  granted  to  any  one  else  unless  it  is 
made  to  appear  that  he  is  interested  in  the  estate.^ 

In  a  contest  as  to  the  right  of  administration,  there  are  strictly 
no  plaintiffs  or  defendants.  All  the  applicants  are  actors,  and 
some  may  withdraw  and  others  come  in  at  any  time  during  the 
progress  of  the  cause." 

The  statute  does  not  regard  a  person  whose  financial  interests 
may  be  adverse  to  the  estate  of  a  decedent  as  incompetent  to 
serve  as  administrator  upon  the  estate  of  such  decedent ;  on  the 
contrary,  a  preference  is  given  to  the  largest  creditor  after  the 
next  of  kin;  and  ample  provision  is  made  for  the  protection  of 
the  estate  when  a  question  arises  as  to  the  adverse  interest  of  an 
administrator  who  is  a  creditor  of  the  estate  he  represents.'^ 

^Ray  V.  Doughty,  4  Blackf.  (Ind.)  And  it  was  held  in  this  case  that 
lis.  where  it  was  claimed  that  at  the  time 
*  Gregg  V.  Wilson,  24  Ind.  227.  of  the  death  of  a  decedent  he  was  in- 
°  Russell  V.  Hartt,  87  N.  Y.  19.  The  debted  to  the  county  in  which  he  re- 
fourth  clause  of  §  2742,  Burns'  R.  S.  sided  and  in  which  his  estate  was  sit- 
1908,  provides  that  if  no  person  en-  uated,  in  a  large  sum  on  account  of 
titled  to  administer  shall  apply  within  taxes,  and  where  no  person  having 
twenty  days  after  the  death  of  the  the  preference  to  letters  of  admin- 
intestate,  the  clerk  or  court  shall  ap-  istration  on  such  estate  applied  there- 
point  a  competent  inhabitant  of  the  for  within  twenty  days  after  the 
county,  to  whom  the  letters  shall  is-  death  of  such  decedent,  that  the  ap- 
sue.  The  court,  in  Bowen  v.  Stewart,  pointment  of  the  treasurer  of  such 
128  Ind.  507,  26  N.  E.  168,  28  N.  E.  county  as  administrator  of  the  estate 
IZ,  said:  "Under  the  statute  in  force  after  the  expiration  of  such  twenty 
when  the  appointment  was  made,  days,  was  legal  and  proper, 
either  the  clerk  of  the  court  or  the  *  Miller  v.  Keith,  26  Miss.  166;  At- 
court  itself  might  make  an  appoint-  kins  v.  McCormick,  4  Jones  L.  (N. 
ment  after  twenty  days,  and  appoint  Car.)  274. 

any     competent     inhabitant     of     the  'Wright   v.    Wright,   12    Ind.    149; 

county."  Bowen  v.   Stewart,    128   Ind.   507,  26 


§    41  LETTERS    OF    ADMINISTRATION,  49 

A  surviving  partner,  as  a  rule,  should  not  be  appointed  admin- 
istrator of  his  deceased  partner's  estate  to  the  exclusion  of  a  per- 
son who  would  likely  prove  more  disinterested,* 

A  judge  during  term  time  may  adjourn  court  for  the  day  and 
afterward  reconvene  court,  the  same  day,  the  adjournment  being 
a  mere  intermission,  as  during  the  term  a  court  may  control  its 
own  sittings.  The  appointment  of  an  administrator  after  court 
has  so  reconvened  is  not  invalid  on  that  account.® 

§  41.  Form  of  petition, — The  statute  contemplates  a  peti- 
tion, or  some  kind  of  showing,  to  be  made  to  the  court,  or  a 
clerk,  by  a  party  applying  for  letters  of  administration.  Some- 
thing of  this  kind  is  necessary  to  call  into  exercise  the  jurisdic- 
tion of  the  court.  If  some  i^etition  is  filed,  however  defective  it 
may  be,  and  the  court  adjudges  it  sufficient,  and  acts  upon  it,  an 
appointment  so  made  will  not  be  void." 

The  petition  should  be  in  writing  and  should  set  forth  the  fact 
of  death  of  the  person,  his  intestacy,  place  of  residence  at  the 
time  of  his  death,  whether  or  not  he  left  any  estate,  an  estimate 
of  the  value,  and  if  application  is  made  within  the  time  allowed 
for  preference,  the  petition  should  show  the  relationship  of  the 
applicant  to  the  decedent,  or  his  interest  in  the  estate,  and  should 
also  show  that  those,  if  any  there  be,  who  would,  under  the  stat- 
ute, be  preferred  to  such  applicant,  have  waived  their  right  to  let- 
ters of  administration. 

The  statute  does  not  prescribe  any  precise  form  in  which  the 
application  shall  be  made,  and  does  not  even  require  that  it  shall 
be  in  writing.  It  does,  however,  require  that  the  court,  shall  ex- 
amine under  oath,  the  person  applying  for  letters,  touching  the 
time  and  place  of  the  death  of  the  intestate,  and  whether  or  not 
he  left  a  will,  and  concerning  the  qualifications  of  the  applicant.^^ 

N.  E.  168,  28  X.  E.  7?, ;  Burns'  R.  S.  "  Bowen  v.   Stewart,   128  Ind.  507, 

1908.  §  2839.  26   N.   E.   168,  28  N.   E.   7Z;   Barber 

'Garber's  Estate.  74  Cal.  338;  Hew-  Asphalt    Pav.    Co.    v.    Edgerton,    125 

ard  V.  Stagle,  52  111.  ZZ6.  Ind.  455,  25  N.  E.  436. 

•Bowen   v.    Stewart,    128   Ind.   507,  "Cooper  v.   Cooper,  43   Ind.   App, 

26  X.  E.  168,  28  X.  E.  7Z.  620,  88  X.  E.  341. 

4 — Pro.  L.\w. 


50  INDIANA    PROBATE    LAW.  §    42 

§  42.  Letters  as  evidence. — Letters  testamentary  and  of 
administration,  and  of  administration  with  the  will  annexed,  or 
de  bonis  non,  attested  by  the  clerk  and  under  the  seal  of  the  court 
issuing  them,  shall  be  conclusive  evidence  of  the  authority  of  the 
person  to  whom  they  are  granted,  until  superseded  or  revoked, 
and  shall  extend  to  all  the  estate,  personal  and  real,  of  the  dece- 
dent within  the  state.  The  record  of  such  letters,  and  duly  certi- 
fied transcripts  thereof,  may  be  given  in  evidence  with  like  effect 
as  the  originals.^" 

The  clerk  shall  keep  a  record  of  such  letters  in  a  book  provided 
for  that  purpose." 

Letters  must  be  issued  by  the  clerk  under  the  seal  of  the  court 
granting  them,  otherwise  they  will  be  no  evidence  of  authority  of 
the  person  to  whom  they  are  granted  to  act."  It  is  not  necessary, 
in  a  suit  by  an  administrator,  that  he  should  set  out  his  letters  of 
administration,  to  show  his  right  to  maintain  the  suit.^^ 

Duly  certified  copies  of  the  letters,  or  certified  transcripts  of 
the  record  of  them,  will  be  accepted  as  sufftcient  proof  of  the  ap- 
pointment.^" 

§  43.  Notice  of  appointment. — Every  executor  or  adminis- 
trator, within  thirty  days  after  his  appointment,  shall  give  notice 
thereof  by  publication,  three  weeks  successively,  in  some  news- 
paper printed  and  published  in  the  county,  if  any  there  be;  and  if 
not,  by  publishing  the  same  in  some  newspaper  printed  and  pub- 
lished nearest  thereto ;  and  such  notice  shall  state  whether  the  es- 
tate is  probably  solvent  or  insolvent.  A  copy  of  such  notice,  with 
proof  of  such  publication  and  dates,  shall  be  filed  by  the  executor 
or  administrator  with  the  proper  clerk  within  thirty  days  after  the 
publication  is  complete.^" 

'-  Burns'  R.  S.  1908,  §  2758.  Barnes,  58  Ind.  20 ;  Hansford  v.  Van 

^'Burns'  R.  S.  1908,  §  2727.  Auken,  79  Ind.  157. 

"Tuck  V.   Boone,   8   Gill   &   Miller  ^«  Morse  v.   Bellows,   7   N.   H.   549, 

(Md.)    187;   Stewart  v.   Cave,   1   Mo.  28  Am.  Dec.  372;  Wittman  v.  Watry, 

752.  45  Wis.  491. 

"  Burns'  R.  S.  1908,  §  2810 ;  Wyant  ''  Burns'  R.  S.  1908,  §  2776. 
V.    Wyant,   38   Ind.    48;    Cromwell   v. 


§    44  LETTERS   OF   ADMINISTRATION.  5 1 

As  to  the  filing  of  claims  against  the  estate  by  creditors,  and 
for  that  purpose,  the  commencement  of  an  administration  dates 
from  the  time  of  giving  the  notice  required  by  this  section  of  the 
statute.^  ^ 

No  particular  form  of  notice  is  prescribed  by  the  statute,  and 
it  has  been  held  that  though  very  informal,  if  there  is  enough  in 
it  to  indicate  the  purpose  for  which  it  was  given,  the  notice  will 
be  sufficient." 

§  44.  Proof  of  notice. — An  executor  or  administrator, 
whose  duty  it  is  to  give  any  of  the  notices  required  by  the  pro- 
visions of  this  act,  shall  file  a  copy  of  every  such  notice  in  the  of- 
fice of  the  clerk  of  the  court  having  probate  jurisdiction,  with  an 
affidavit  thereon  made  by  such  executor  or  administrator,  or  a 
competent  witness  before  some  officer  duly  authorized  to  admin- 
ister oaths,  stating  the  times  and  places  when  and  where  such  no- 
tices were  published  or  set  up."'^ 

Such  copy  of  any  notice  verified  as  aforesaid,  and  duly  certified 
by  the  clerk  of  said  court,  shall  be  received  as  evidence  in  any 
court  in  this  state,  and  be  deemed  sufficient  proof  of  the  matters 
and  things  therein  contained.-^ 

Nothing  contained  in  the  two  preceding  sections  shall  preclude 
such  executor  or  administrator,  or  any  other  person,  from  prov- 
ing, in  any  suit  or  proceeding,  that  the  provisions  of  this  act  re- 
specting such  notice  have  been  complied  with,  although  no  such 
affidavit  may  have  been  filed  as  therein  required. ^^ 

"  Floyd  V.  Miller,  61  Ind.  224.  ^  Burns'  R.  S.  1908,  §  2985. 

"  Gilbert  v.   Little,  2  Ohio  St.   156.        "  Burns'  R.  S.  1908,  §  2986. 
"  Bums'  R.  S.  1908,  §  2984. 


CHAPTER  III. 

LETTERS  TESTAMENTARY. 

§45.  When  issued  and  to  whom.  §50.  Foreign  executors  to  have  pref- 

46.  Who  not  competent  to  serve  as  erence. 

executors.  51.  Executor  of  executor. 

47.  Who  shall  be  named.  52.  Executor's  power  before  letters 

48.  Renunciation  of  right.  issue. 

49.  Letters  with  the  will  annexed.  53.  Similarity  of  powers. 

§  45.  When  issued  and  to  whom. — The  statute  provides 
that  whenever  any  will  shall  have  been  duly  admitted  to  probate, 
the  clerk  of  the  circuit  court  in  which  the  same  shall  have  been 
probated  shall  issue  letters  testamentary  thereon  to  the  person  or 
persons  therein  named  as  executors  who  are  competent  by  law  to 
serve  as  such,  and  who  shall  appear  and  qualify.^ 

At  the  common  law  all  persons  except  idiots  and  lunatics  were 
competent  to  act  as  executors;  neither  infancy,  ignorance,  non- 
residence,  coverture,  intemperance,  improvidence,  vice,  dishon- 
esty, nor  moral  delinquency  disqualified  one  for  the  office.  And 
in  the  absence  of  any  statute  expressly  disqualifying  any  particu- 
lar classes  of  persons,  or  conferring  a  discretion  upon  the  court 
vested  with  the  power  of  appointment,  the  rule  will  prevail  that 
courts  have  no  discretion  in  respect  to  the  issue  of  letters  to  the 
persons  nominated  in  the  will,  and  that  the  person  appointed  by 
the  will  cannot  be  rejected  by  the  court  except  where  the  law  ex- 
pressly so  provides." 

In  the  absence  of  statutory  regulation  the  choice  of  the  testa- 

^  Burns'  R.  S.  1908,  §  2737.  ner  Am.  Law  Admin.,  p.  503,  et  seq. ; 

'^Kidd  V.  Bates,  120  Ala.  79,  23  So.  Schouler  Extrs.  &  Admrs.,  §§  32,  33; 

735,  74  Am.  St.  17,  41  L.  R.  A.  154;  1   Williams   Extrs.,  p.   269;    Redfield 

Stewart's  Appeal,  56  Me.  300 ;  Woer-  on  Wills,  pt.  3,  chap.  2,  §  3. 

52 


§  45 


LETTERS   TESTAMENTARY. 


53 


tor  must  be  respected  regardless  of  the  moral  character  of  the 
nominee.  For  from  the  earliest  times  it  has  been  the  rule  that 
every  person  may  be  an  executor,  saving  only  such  as  are  ex- 
pressly forbidden.  The  rule  being  that  all  persons  who  were  ca- 
pable of  making  a  will  were  qualified  to  act  as  executors.^ 

The  fact,  however,  that  one  is  named  in  the  will  as  executor, 
does  not  make  him  so  in  fact,  but  only  gives  him  the  legal  right 
to  become  executor  upon  complying  with  the  conditions  required 
by  law.*    The  executor  derives  his  right  and  title  to  the  estate,  as 


'Smith's  Appeal,  61  Conn.  420,  24 
Atl.  273,  16  L.  R.  A.  538n;  2  Wil- 
liams Extrs.,  p.  108.  In  a  case  de- 
cided in  New  York  in  1864,  under  a 
statute  of  that  state.  Judge  Johnson 
uses  the  following  language :  "I  am 
of  the  opinion  that  any  person  ap- 
pointed or  named  executor  in  a  will 
is  to  be  deemed  to  be  competent  im- 
less  he  is  declared  incompetent  by 
statute,  and  that  it  is  the  duty  of  the 
surrogate  to  grant  letters  to  every 
person  named  executor  in  a  will,  upon 
his  application,  who  is  not  declared 
incompetent  by  some  statute.  He  has 
no  discretion  to  exercise  in  the  mat- 
ter, but  must  obey  the  requirements 
of  the  statute,  which  is  the  sole 
source  of  his  power.  To  allow  surro- 
gates to  invent  new  causes  of  dis- 
qualification, and  add  to  those  pre- 
scribed by  statute,  would  be  confer- 
ring novel  and  dangerous  powers 
upon  those  officers  of  special  and  lim- 
ited jurisdiction."  McGregor  v.  Mc- 
Gregor, 3  Abb.  App.  Dec.  92.  In  the 
same  case  Judge  Denio  said:  "The 
selection  of  executors  is  not  com- 
mitted to  the  surrogate's  court.  The 
testator  is  allowed  to  appoint  such 
persons  as  he  may  select,  provided 
they  do  not  fall  within  the  classes  of 
incompetent  persons  mentioned  in  the 
statute."  In  a  Kentucky  case,  decided 
in   1851,  the  court  says:    "The  moral 


fitness  of  the  person  appointed  as 
executor  of  a  will  cannot  be  inquired 
into  by  the  court  to  which  he  applies 
for  permission  to  qualify.  He  derives 
his  office  from  testamentary  appoint- 
ment, and,  if  he  is  a  person  not  dis- 
qualified by  law  from  being  an  execu- 
tor, the  court  has  no  right  to  refuse 
to  permit  him  to  qualify,  or  to  refuse 
to  grant  him  letters  testamentary." 
Berry  v.  Hamilton,  12  B.  Mon.  (Ky.) 
191,  54  Am.  Dec.  515n.  "One  is  not 
disqualified  from  acting  as  executor 
on  account  of  crime.  He  may  act  in 
that  capacity,  although  attainted  or 
outlawed,  under  the  English  law.  Nor 
does  immorality  or  habitual  drunken- 
ness, by  the  American  practice,  dis- 
qualify one  to  act  in  that  office." 
Redf.  Wills,  art.  3,  chap.  2,  §  8.  So 
far  as  we  are  aware  these  citations 
are  in  substantial  agreement  with  our 
own  law  upon  the  subject.  Thus 
Swift  says :  "Every  person  who  is 
capable  of  making  a  will  may  be  ap- 
pointed as  executor."  1  Swift,  Sys- 
tem of  Laws,  423.  In  his  digest,  Judge 
Swift  says:  "An  executor  is  a  per- 
son appointed  by  the  testator  to  carry 
his  will  into  effect.  Any  person  may 
be  appointed  an  executor,  excepting 
an  idiot  or  alien  enemy." 

♦  Stagg  V.  Green,  47  Mo.  500.  The 
doctrine  of  the  common  law  in  this 
regard  has  not  been  adopted  in  most 


54  INDIANA    PROBATE    LAW.  §    45 

well  as  his  appointment,  from  the  will,  but  iiis  power  of  adminis- 
tration over  the  estate  does  not  become  substantial  until  letters 
testamentary  authenticating  his  appointment  and  right  have  been 
issued  to  him  by  the  proper  court.  Such  letters  do  not  create  the 
executor  nor  confer  any  title  upon  him,  but  are  simply  the  authen- 
tic evidence  of  the  power  conferred  by  the  will  and  which  existed 
before  letters  issued. 

The  issuing  of  letters  testamentary,  and  the  qualifying  of  the 
executor  are  matters  of  fonn  and  are  for  purposes  of  authentica- 
tion, as  well  as  to  give  the  stamp  of  legal  approval  and  power  to 
the  appointment  made  by  the  testator  in  his  will.'' 

Before  letters  testamentary  can  issue  there  are  certain  jurisdic- 
tional facts  which  must  be  established  to  the  satisfaction  of  the 
probate  court. 

The  first  and  most  important  is  whether  or  not  there  is  a  valid 
existing  will  which  has  been  duly  admitted  to  probate.  For  if  no 
will  no  executor. 

It  will  be  noticed  that  this  statute  does  not  forbid  issuing  let- 
ters testamentary  to  a  non-resident  executor.  Non-residence  was 
no  disqualification  at  common  law,  nor  is  it  now  except  where  ex- 
pressly made  so  by  statute.*^ 

Our  statutes  nowhere  in  express  terms  make  non-residence  a 
disqualification  for  the  office  of  executor,  but  they  do  contain  ex- 

of    the    states.      The    executor    here  until  his  right  had  been  established  by 

does  not,   as   in  England,   derive  his  proof  of  the  will.     *    *    * 

power  solely  from  the  will,  but  the  '  Fulgham  v.  Fulgham,  119  Ala.  403, 

law  imposes  certain  obligations  upon  24  So.  851 ;  Cutler  v.  Howard,  9  Wis. 

him  before  he  is  permitted  to  execute  309;  Hammond  v.  Wood,  15  R.  I.  566, 

it.  10  Atl.  623 ;  Whittaker  v.  Wright,  35 

"Wankford   v.   Wankford,    1    Salk.  Ark.   511;   Holladay  v.   Holladay,    16 

299;    Stagg   v.    Green,    47    Mo.    500;  Ore.   147,   19  Pac.  81.     The  omission 

Wood  V.  Cosby,  76  Ala.  557.     By  the  of  non-residents  from    the    statutory 

common  law  the  personal  property  of  enumeration    of    persons    disqualified 

the   testator   vested   in   the   executor,  to   serve  as  executors  authorizes  the 

and  he  might,  by  virtue  of  the  will,  appointment   of   non-residents   to   act 

take  immediate  possession  of  it,  dis-  as    executors.      Hecht    v.    Carey,    13 

pose  of  it,  and  in  almost  every  respect  Wyo.   154,  78  Pac.  705,   110  Am.   St. 

treat    it    as    his    own.    He    was    not  981;  Rice  v.  Tilton,  13  Wyo.  420,  80 

bound   even  to  wait   for  its  probate,  Pac.  828. 
although  he  could  not  appear  in  court 


§    45  LETTERS    TESTAMENTARY.  55 

pressions  like  these,  "change  of  residence  actual  or  intended";'' 
"shall  be  about  removing  from  the  county" ;  "removes  to  another 
county  in  this  state. "^  These  are  all  made  cause  for  removal  of 
an  executor  but  seem  to  have  application  only  to  executors  resi- 
dent in  this  state. 

Then  again  it  is  provided  if  any  executor  shall  remove  from  the 
state,  the  remaining  executor  shall  complete  the  administration, 
but  if  there  be  no  co-executor  remaining  in  this  state  letters  of 
administration  with  the  will  annexed  shall  be  granted  to  some 
person  entitled,  under  the  same  regulations  as  the  original  letters 
were  issued.^ 

This  last  cited  statute  was  under  construction  in  Ewing  v.  Ew- 
ing,  38  Ind.  390.  In  this  case  letters  testamentary  had  been  is- 
sued to  a  resident  of  this  state  and  also  to  a  resident  of  Ohio  as 
co-executors.  The  former  resigned  and  the  latter  removed  from 
Toledo,  Ohio,  to  Chicago  for  greater  convenience  in  the  discharge 
of  the  duties  of  the  trust.  On  petition  of  one  of  the  legatees  it 
was  held  to  be  the  duty  of  the  court  to  appoint  a  resident  admin- 
istrator to  take  the  place  of  the  resigned  executor.  But  the  court 
expressly  refrained  from  deciding  whether  this  would  remove  the 
non-resident  executor,  or  deprive  him  of  any  of  the  powers  con- 
ferred, or  relieve  him  of  any  of  the  duties  imposed  on  him  by 
the  will  or  by  the  law  of  his  appointment.  And  so  the  question 
remains  undecided  in  this  state  yet." 

Another  jurisdictional  fact  necessary  to  be  shown  before  let- 
ters testamentary  are  issued,  is  the  existence  of  some  estate  to  be 
administered  upon  or  something  for  the  executor  to  do,  otherwise 
there  should  be  no  appointment. 

'Burns'    R.    S.    1908,    §    2762,    first  cutor    who    shall    reside    out    of    the 

clause.  state,  but  such  provision  is  to  be  con- 

'  Burns'    R.    S.    1908,    §    2762,    fifth  strued  as  giving  discretionary  power 

clause.  of  removal  when  the  distance  between 

"Burns'   R.    S.    1908,    §  2756.  the  place  of  residence  of  the  executor 

^''  The  common-law  right  to  name  a  and  the  court  where  the  business  is 

non-resident    executor    is    not    to   be  to  be  transacted  is  so  great  as  to  ren- 

swept   away   by   giving   a   mandatory  der  it  inconvenient  and  impracticable 

construction  to  a  statutory  provision  for  him  to  act.     Cutler  v.   Howard, 

that  the  court  "may"  remove  an  exe-  9  Wis.  309. 


56  INDIANA    PROBATE    LAW.  §    45 

The  following  have  been  held  assets  sufficient  to  justify  an  ap- 
pointment: Property  brought  within  the  state  after  the  testator's 
death  if  brought  in  good  faith  and  not  for  the  purpose  of  gWmg 
jurisdiction;^'  a  judgment  held  by  the  decedent  in  this  state;'"  a 
right  of  action  to  set  aside  a  fraudulent  conveyance;"  or  a  debt 
due  from  an  inhabitant  of  this  state  to  the  decedent;'*  a  policy  of 
insurance  payable  in  this  state;"  shares  of  stock  in  a  resident  cor- 
poration ;'•"  a  note  secured  by  mortgage  on  property  in  this  state ;" 
a  folding  chair;"  a  right  of  action  on  an  unliquidated  claim;'®  a 
distributive  share  due  the  decedent  and  in  the  hands  of  an  admin- 
istrator of  this  state. '° 

Every  person  named  in  the  will  as  executor,  who  shall  qualify 
and  give  bond,  shall  be  named  as  executors  in  the  letters  testa- 
mentary; and  every  person  not  named  in  such  letters  shall  be 
deemed  superseded.^' 

When  there  are  two  or  more  executors  named  in  the  will,  each 
must  prove  the  will  and  take  out  letters  testamentary,  and  each  is 
liable  only  for  the  assets  which  come  into  his  hands.  Letters 
testamentary  granted  in  another  state  are  recognized  here  upon 
being  filed  with  the  clerk  of  the  court  in  which  they  are  intro- 
duced.^- 

When  letters  testamentary  were  granted,  and,  instead  of  being 
delivered  to  the  executor,  were  entered  of  record,  and  afterwards, 

"Pinney  v.  McGregory,   102  Mass.  &c.  Life  Assn.,  7  Misc.   (N.  Y.)  593, 

186;  Borer  v.  Chapman,  119  U.  S.  587,  28  N.  Y.  S.  263;  In  re  Miller,  5  Dem. 

30  L.  ed.  532,  7  Sup.  Ct.  342;  Carroll  (N.  Y.)  381. 

V.   Hughes,  5   Redf.     (N.    Y.)    337;  "Arnold  v.  Arnold,  62  Ga.  627. 

Christy  V.  Vest,  36  Iowa  285.  "  Clark    v.    Blackington,   110  Mass. 

^"Thomas  v.  Tanner,  6  T.  B.  Mon.  369. 

(Ky.)  52.  "White  v.  Nelson,  2  Dem.  (N.  Y.) 

"Bowdoin    v.    Holland,    10    Cush.  265. 

(Mass.)  17.  "Robinson  v.  Epping,  24  Fla.  237, 

"Stearns  v.  Wright,  51  N.  H.  600;  4  So.  812. 

IMurphy  v.   Creighton,  45   Iowa   179;  ="  In  re  Nesmith,  48  Hun    (N.  Y.) 

Wyman  v.  Halstead,  109  U.  S.  654,  27  621.  1  N.  Y.  S.  343. 

L.  ed.  1068,  3  Sup.  Ct.  417.  ''  Burns'  R.  S.  1908.  §  2738. 

"New    England    &c.    Ins.    Co.    v.  -  Naylor  v.  Moody,2  Blackf.  (Ind.) 

Woodworth,  111  U.  S.  138,  28  L.  ed.  247. 
379,  4  Sup.  Ct.  364;   Sulz  v.  Mutual 


§    46  LETTERS    TESTAMENTARY.  57 

when  delivered,  were  certified  to  be  of  record,  they  were  held 
sufficient." 

§  46.  Who  not  competent  to  serve  as  executors. — The 
statute  further  provides  that  no  person  shall  be  deemed  compe- 
tent to  serve  as  an  executor  who  at  the  time  of  application  for  let- 
ters shall,  upon  proof  made  before  such  court  or  clerk,  be  shown 
to  be,  1st,  under  the  age  of  twenty-one;  2d,  to  have  been  convicted 
of  a  felony;  3d,  who  shall  be  adjudged  by  said  court  or  clerk  in- 
competent to  discharge  the  duties  of  an  executor  by  reason  of  im- 
providence, habitual  drunkenness  or  other  incapacity.^* 

No  married  woman  shall  be  appointed  executrix  unless  the 
written  consent  of  her  husband  thereto  has  been  filed  with  the 
proper  clerk, -^  By  the  common  law  a  wife  could  not  act  as  an 
executrix  or  administratrix  without  her  husband.  The  right  to 
administer  devolved  upon  him  by  right  of  the  marriage  and  he 
was  permitted  to  act  in  the  administration  of  the  effects  of  the 
deceased  either  with  or  without  her  consent.  He  was,  to  all  in- 
tents and  purposes,  not  alone  co-administrator  or  co-executor 
with  her  but  the  sole  trustee.^®  But  this  rule  is  now  changed  by 
statute  and  a  married  woman  may  now,  with  the  consent  of  her 
husband,  accept  such  trust,  the  office  vesting  in  her  alone  with  no 
right  of  participation  therein  to  the  husband,  yet  he  will  be  held 
responsible  for  her  acts  in  the  discharge  of  such  trust.^' 

The  statute  in  this  respect  is  simply  declaratory  of  the  common 
law.  The  wife,  where  such  consent  is  given,  is  the  administra- 
trix or  executrix  as  the  case  may  be,  and  may  sue  as  such,  and 
discharge  the  duties  of  her  trust  without  her  husband  joining 
her.-^ 

"Bales  V.  Binford,  6  Blackf.  (Ind.)  to  give  bond.  *  *  *  But  her  husband 

415.  must  consent  to  her  acting  in  such  ca- 

"  Burns'  R.  S.  1908,  §  2737.  pacity." 

^Burns'    R.    S.    1908,    §    2745.     Ex  =»  Yard  v.  Eland,  1  Ld.  Raym.  368; 

parte  Maxwell,  19  Ind.  88.   The  court,  Ankerstein  v.  Clarke,  4  T.  R.  616. 

in  this  case,   says:   "By  the  common  "Jenkins  v.  Jenkins,  23  Ind.  79;  Ex 

law,  as  administered  in  the  chancery  parte  Maxwell,  19  Ind.  88;  Burns'  R. 

and    ecclesiastical    courts,    a   married  S.  1908,  §  2745. 

woman  is  not  disabled  to  be  an  execu-  ^Jenkins  v.  Jenkins,    23    Ind.    79; 

trix,     administratrix,     or     guardian;  Ex  parte  Maxwell,  19  Ind.  88. 
though,  as  such,  she  may  be  required 


58 


INDIANA    PROBATE   LAW. 


§    46 


Neither  the  canon  nor  the  civil  law  made  any  distinction  be- 
tween woman  married  and  unmarried  as  to  the  right  to  act  as 
administrator  or  executor,  and  a  wife  could  take  upon  herself 
such  duties,  even  without  the  consent  of  the  husband.-" 

In  this  state,  where  a  feme  sole  has  been  appointed  executrix, 
and  pending  the  settlement  of  the  trust  she  marries,  such  mar- 
riage is  cause  for  her  removal  unless  her  husband  files  his  written 
consent  to  her  continuing  to  act  as  such  executrix.^" 

Improvidence  and  habitual  drunkenness  are  made  disqualifica- 
tions; and  any  other  incapacity  held,  by  the  court  or  clerk  mak- 
ing the  appointment,  a  disqualification,  will  render  one  incompe- 
tent to  act  as  executor.  Such  appointment  cannot  be  refused 
though,  by  reason  of  any  unfitness  peculiarly  within  the  knowl- 
edge of  the  person  making  the  appointment.  Such  personal 
knowledge  should  be  put  in  form  of  evidence  so  that  an  adjudica- 
tion could  be  had  as  if  upon  a  hearing." 

The  disqualification  on  the  ground  of  improvidence  refers  to 


-■»  Williams  Extrs.  272. 

^"Burns'  R.  S.  1908,  §§  2762,  2768; 
Jenkins  v.  Jenkins,  23  Ind.  79.  In  this 
case  the  widow  of  a  decedent  was  ap- 
pointed administratrix  of  the  estate 
of  such  decedent,  and  while  acting  as 
such  notes  were  executed  to  her  in 
her  representative  capacity  as  payee, 
and  while  holding  such  notes  she  re- 
married, and  then  commenced  suit  on 
such  notes  in  her  own  name.  She 
had  not  been  removed  as  administra- 
trix, and  it  does  not  appear  that  her 
husband  ever  filed  his  consent  for  her 
to  act  as  such.  The  court  held  that 
she  might  maintain  the  suit  in  her 
own  name,  without  the  joinder  of  the 
husband,  saying,  "that  an  executor  or 
administrator  may  sue  by  virtue  of 
the  legal  title  without  joining  the  ben- 
eficiary. Now,  the  legal  title  to  the 
personal  property  of  the  deceased  is 
in  the  administratrix  or  executrix,  in 


a  case  like  the  present,  as  her  sepa- 
rate property,  as  against  her  hus- 
band." 

^  Smith  V.  Moore,  3  How.  (Miss.) 
40.  A  provision  in  a  will  selecting 
an  attorney  and  directing  the  executor 
to  consult  and  employ  him  on  mat- 
ters pertaining  to  the  will  and  the 
estate  is  not  binding  on  the  executor, 
nor  does  it  show  an  intent  to  commit 
the  execution  of  the  will  to  the  attor- 
ney, and  entitle  him  to  be  selected  as 
an  executor.  Estate  of  Ogier,  101 
Cal.  381,  35  Pac.  900,  40  Am.  St.  61. 
In  the  absence  of  any  objection  to 
the  competency  of  an  executor,  an 
order  admitting  the  will  to  probate  in- 
cludes his  right  to  have  letters  issued 
to  him.  Estate  of  Richardson,  120 
Cal.  344,  52  Pac.  832.  Letters  testa- 
mentary cannot  be  issued  to  one  not 
named  as  executor  in  the  will.  Estate 
of  Wood,  36  Cal.  75. 


§   47  LETTERS   TESTAMENTARY.  59 

such  habits  of  mind  and  body  as  render  a  man  generally,  and 
under  all  ordinary  circumstances,  unfit  to  serve.^" 

§  47.  Who  shall  be  named. — The  testator  has  the  right  to 
nominate  an  executor,  and  unless  the  person  so  named  is  in  some 
way  legally  disqualified,  he  should  be  appointed.  No  one  has  a 
right  to  ask  appointment  to  the  office  of  executor  unless  the  testa- 
tor has  so  named  him  in  his  will. 

It  is  not,  however,  necessary  that  the  executor  be  designated  by 
name  in  the  will.  It  will  be  sufficient  if  the  language  used  by  the 
testator  be  such  that  it  shows  his  intention  to  invest  a  certain  per- 
son with  the  office  and  to  identify  the  person  intended.^^  Nor 
even  need  this  much  be  done,  for  the  testator  may  designate  some 
one  and  vest  him  with  the  power  to  select  and  name  an  executor. 
This  power  to  delegate  the  appointment  to  a  third  person  was 
valid  at  common  law,  and  the  appointment  when  made  by  such 
third  person  will  be  the  same  as  if  the  testator  had  named  such 
person  in  his  will.^* 

The  court  saying  in  one  case,  "the  executor  is  the  creation 
solely  of  the  testator.  And  it  is  within  the  power  of  the  latter, 
not  only  to  appoint  personally,  but  he  may  project  his  power  of 
appointment  into  the  future,  and  exercise  it  after  death  through 
an  agent  selected  by  him.  And  the  agent  may  be  pointed  out  by 
name,  or  by  his  office  or  other  method  of  certain  identification."^^ 

Where  one  named  in  the  will  as  executor  has  taken  on  himself 
by  mutual  consent  of  all  the  persons  interested  in  the  estate  the 
duties  of  the  trust  without  qualifying  as  executor,  it  would  be  a 
fraud  upon  him,  as  well  as  upon  the  heirs,  legatees  and  devisees 

"  Emerson  v.  Bowers,  14  N.  Y.  449 ;  Bishop,  56  Conn.  208,    14    Atl.    808 ; 

Cooper  V.  Lowerre,  1  Barb.  Ch.   (N.  Kinney  v.  Keplinger,  172  111.  449,  SO 

Y.)  45.  N.  E.  131;  Wilson  v.  Curtis,  151  Ind. 

"Carpenter   v.    Cameron,    7    Watts  471,  51  N.   E.  913,  68  Am.   St.  237; 

(Pa.)  51;  Matter  of  Blancan,  4  Redf.  Woerner      Law      Admin.,      §      239; 

(N.  Y.)   151.  Schouler  Extrs.  &  Admrs.,  §  41 ;  Cros- 

"  Hartnett    v.    Wandell,    60    N.    Y.  well  Extrs.  &  Admrs.,  p.  52. 

346,  19  Am.  Rep.  194 ;  State  v.  Rogers,  "^  Bishop  v.  Bishop,  56  Conn.  208,  14 

1  Houst.  (Del.)  569;  Mulford  v.  Mul-  Atl.  808. 
ford,    42    N.    J.    Eq.    68;    Bishop    v. 


60  INDIANA    PROBATE   LAW.  §    48 

who  had  consented  to  such  action,  to  appoint  a  stranger  adminis- 
trator with  the  will  annexed  after  the  time  for  qualifying  by  such 
executor  has  passed,  and  such  letters  should  not  be  confirmed. """^ 

Where  two  or  more  persons  have  been  named  by  a  testator  in 
his  will  as  executors  thereof,  and  only  one  of  them  qualifies,  that 
one  has  all  the  authority  under  the  will  which  would  ha\e  vested 
in  all  had  they  qualified." 

If  the  testator  fails  to  appoint  an  executor  in  his  will,  and  by 
such  will  directs  that  all  of  his  estate  shall  go  at  once  into  the 
hands  of  legatees,  such  direction  will  be  nugatory  and  void  as 
against  creditors  or  others  adversely  interested  in  his  estate.^"* 

§  48,  Renunciation  of  right. — Any  person  who  is  appointed 
executor  who  shall  renounce  his  trust  in  writing  filed  with  the 
clerk,  or  who  shall  fail  to  qualify  and  give  bond  within  twenty 
days  after  probate  of  such  will,  shall  be  deemed  to  have  renounced 
such  appointment,  and  such  letters  shall  issue  to  any  other  person 
named  in  the  will  capable  and  willing  to  accept  such  trust.^" 

"  Hays  V.  Vickery,  41  Ind.  583.  execute  the  will ;  that  it  was  neces- 
"  Bodley  v.  McKinney,  9  S.  &  M.  sary  for  all  the  donees  to  join  in  the 
(Miss.)  339;  Phillips  v.  Stewart,  59  execution  of  the  power.  But  there  is 
Mo.  491.  In  Call  v.  Ewing,  1  Blackf.  nothing  in  this  objection.  Only  one 
301,  the  court  says :  "It  seems,  there-  of  them  qualified,  and  the  statute  de- 
fore,  that  bond  and  surety  should  be  clares  that  where  there  are  two  or 
given  for  the  due  execution  of  the  more  persons  appointed  as  co-exe- 
will  by  each  person  who  acts  as  exe-  cutors  in  any  will,  none  shall  have 
cutor  under  that  will;  and  that  no  authority  to  act  as  such,  or  inter- 
person  has  authority  to  act  as  exe-  meddle,  except  those  who  give  bond, 
cutor  until  bond  and  surety  be  given  Case  alone  having  qualified,  the  whole 
that  he  will  discharge  his  duty  as  duty  and  burden  of  executing  the 
svich  executor."  The  court  in  Phillips  power  devolved  upon  him,  and  him 
v.   Stewart,  59  Mo.  491,  said:     "The  alone." 

will   appointed   four  persons   as  exe-  ^' Newcomb    v.    Williams,    9    Mete, 

cutors    and   only   one,   the   defendant  (IMass.)  525. 

Case,  qualified. '  The  will  giving  the  "^  Burns'  R.  S.  1908,  §  2739.  Renun- 
power  to  sell  and  convey  the  land  for  ciation  is  a  declination  to  accept  the 
the  payment  of  debts  uses  this  Ian-  office,  and  if  an  executor  renounces,  he 
guage :  'which  my  executors  are  here-  may  retract  such  renunciation  if  no 
by  authorized  and  empowered  to  sell  administrator  has  been  appointed  in 
and  convey  for  such  purpose.'  It  is  the  meantime.  In  general  any  agree- 
now  urged  that  Case  alone  could  not  ment  for  a  consideration  to  renounce 


§    49  LETTERS   TESTAMENTARY.  6 1 

As  the  office  of  executor  is  one  of  personal  confidence  the  per- 
son named  by  the  testator  has  his  election  to  accept  or  renounce 
the  trust  imposed  upon  him  by  the  will.*'^ 

The  trust  must  be  renounced  entirely  or  not  at  all.  It  can  not 
be  done  in  part," 

The  renunciation  must  be  in  writing,  signed  by  the  executor 
named,  and  filed  in  the  court  where  the  will  is  probated,  for  the 
purpose  of  furnishing  matter  of  record  upon  which  to  base  the 
appointment  of  another  executor,  or  an  administrator  with  will 
annexed.  The  English  rule  of  constructive  acceptance  or  renun- 
ciation of  the  trust  can  have  no  place  under  such  statute  as  ours, 
for  the  presumption  is  here,  after  twenty  days  from  the  probate 
of  the  will,  in  favor  of  his  renunciation.  Xor  is  there  such  a  thing 
as  renouncing  the  trust  after  an  executor  has  quaHfied;  an  exec- 
utor can  only  be  said  to  renounce  when  he  refuses  to  qualify  with- 
in the  given  time,  and  a  refusal  afterwards  to  act  is  more  prop- 
erly a  resignation. ^- 

The  right  to  letters  testatmentary  cannot  be  assigned,  an  agree- 
ment to  that  effect  being  held  to  be  contrary  to  public  policy.^^ 

The  death  of  a  sole  executor  before  probate  of  the  will  or  re- 
nunciation leaves  a  vacancy  which  must  be  filled  as  in  the  case 
of  a  formal  renunciation. ■'■' 

§  49.  Letters  with  the  will  annexed. — AA'henever  the  per- 
son named  in  the  will  as  executor  declines  to  serve  as  such  for 

an  executorship  is  illegal  and  will  not  *^  In    re    Suarez,    3    Dem.    (N.    Y.) 

be  enforced.  An  agreement  made  with  164.     After  letters  have  been  granted 

persons   in   interest  before   the   death  and   the  person  appointed  has   quali- 

of  the  testator  and  contrary  to  his  ex-  fied,   he   cannot   renounce    the    office. 

pressed  wish,  with  one  named  by  him  The   only  way  of  escape   then  is  by 

as  executor,  to  renounce  the  appoint-  resignation.     Goods  of  Veiga,  32  L. 

ment   for  a  consideration,  is  void  as  J.  P.  9. 

against   public   policy.       Schouler    on  "Stanton   v.    Parker,    19   Hun    (N. 

Extrs.  &  Admrs.,  §  48;  Robertson  v.  Y.)  55;  Ellicott  v.  Chamberlin,  38  N. 

McGeoch.    11    Paige    (N.    Y.)    640;  J.  Eq.  604,  48  Am.  Rep.  327n;  Bowers 

Davis  V.  Inscoe,  84  N.  Car.  396.  v.  Bowers,  26  Pa.  St.  74,  67  Am.  Dec. 

«  Williams  Extrs.  §  274.  398. 

"Thornton  v.  Winston,  4  Leigh  "Schouler  Extrs.  &  Admrs.,  §  45. 
(Va.)  152. 


62  INDIANA    PROBATE   LAW.  §    49 

any  reason,  or  where  the  will  fails  to  designate  any  person  as  ex- 
ecutor, or  fails  to  delegate  some  person  to  appoint  an  executor, 
the  duty  devolves  upon  the  proper  probate  court,  when  such  fact 
is  made  to  appear,  to  appoint  some  suitable  and  legally  competent 
person  administrator  with  the  will  annexed,  whose  duty  it  will  be 
to  proceed  with  the  administration  of  such  estate  according  to  the 
tenor  of  the  will. 

A  person  so  appointed  is  like  an  administrator  in  this  that  his 
sole  authority  to  act  rests  in  his  appointment  by  the  probate 
court,  but  like  an  executor  he  must  administer  the  estate  accord- 
ing to  the  directions  in  the  will.  His  duties  therefore  being  those 
of  an  executor;  his  appointment  that  of  an  administrator. 

The  statute  in  regard  to  such  appointments  is  as  follows:  If 
there  be  no  person  named  in  the  will  as  executor,  or  if  those 
named  therein  have  failed  to  qualify,  have  renounced  or  have 
been  removed,  letters  of  administration  with  the  will  annexed 
shall  be  granted  by  the  proper  clerk  or  court  to  any  competent 
residuary  legatee  named  in  such  will  willing  to  accept,  or,  if  there 
be  none  willing  to  accept,  then  to  a  competent  specific  legatee,  or, 
if  there  be  none  such  willing  to  accept,  then  to  any  competent  per- 
son under  the  same  regulations  as  in  granting  letters  of  adminis- 
tration in  the  case  of  intestacy.^^ 

Whenever  there  is  a  will  there  must  be  an  executor,  or  an  ad- 
ministrator with  the  will  annexed ;  no  administrator  can  be  ap- 
pointed when  there  is  a  will.  If  there  is  an  executor  named  in 
the  will,  he  must  be  appointed,  if  willing  to  serv-e;  otherwise,  an 
administrator  with  the  will  annexed  must  be  appointed.  Such 
administrator  may  be  appointed  in  the  following  cases:  ist, 
where  there  is  no  person  named  in  the  will ;  2d,  when  those  named 
in  the  will  have  failed  to  qualify;  3d,  when  those  named  as  ex- 
ecutors have  renounced  the  right  to  administer;  4th,  wdien  the  ex- 
ecutor named  in  the  will  has  been  appointed  and  afterward  been 
removed  from  the  trust.  The  only  difference  between  an  exec- 
utor and  an  administrator  with  the  will  annexed  consists  in  their 
mode  of  appointment.    The  one  is  designated  by  the  testator,  and 

''  Burns'  R.  S.  1908,  §  2741. 


§    49  LETTERS    TESTAMENTARY.  63 

qiialiried  by  the  clerk  or  court;  the  other  is  both  apjjointed  and 
quahfied  l)y  the  clerk  or  court.  In  the  appointment  of  an  admin- 
istrator with  ihc  will  annexed,  the  preference  is  to  be  given,  ist, 
to  a  comi)etent  residuary  legatee;  2d,  to  a  specific  legatee;  and,  3d, 
to  any  competent  person,  under  the  same  regulations  as  to  grant- 
ing letters  in  case  of  intestacy;  that  is,  ist.  to  the  widow;  2d,  to 
the  next  of  kin;  3d,  to  the  largest  creditor  residing-  in  tlie  state; 
4th,  to  some  competent  inhabitant  of  the  county.  There  cannot 
be  in  the  same  estate  both  an  executor,  or  an  admim'strator  with 
the  will  annexed,  and  an  administrator.  The  executor  is  suc- 
ceeded by  the  administrator  with  the  will  annexed,  and  the  ad- 
ministrator with  the  will  annexed  is  succeeded  by  the  administra- 
tor de  bonis  non  with  the  will  annexed.  They  all  act  under  and 
in  pursuance  of  the  will.'" 

Letters  of  administration  with  the  will  annexed  cainiol  be 
legally  granted  and  confirmed  while  letters  testamentary  granted 
to  an  executor  named  in  the  will  remain  in  full  force." 

In  some  of  the  states  it  is  provided  by  statute  that  all  the  rights 
and  powers  of  the  executor  are  vested  in  an  administrator  with 
the  will  annexed  rmd  he  is  subject  to  the  same  duties  as  if  he  had 
been  named  as  the  executor  in  the  will.  But  while  we  have  no 
such  statute  in  this  state,  our  courts  have  followed  the  same  prin- 
ciple as  being  the  true  one  in  dealing  wilh  such  administrations. 

There  can  be  no  doubt  but  that  such  rule  is  the  true  one,  but  a 
diiliculty  occurs  in  its  application  where  the  will  imposes  duties 
and  trusts  upon  the  executor  named  therein  which  are  not  such 
as  are  necessary  for  the  administrator  with  the  will  annexed  to 
exercise  in  the  due  administration  of  the  estate. 

So  where  the  trusts  and  duties  rej)osed  by  the  will  in  the  exec- 
utor named  are  of  a  ])ersonal  and  esi)ecial  confidence,  and  such  as 
may  be  dissociated  from  the  actual  administration  of  the  estate 
they  would  not  of  right  follow  and  vest  in  the  administrator  with 
the  will  annexed.   'J'he  rule  is  stated  by  one  author  as  follows: 

"The  general  rule,  then,  may  be  stated  to  be  that  where  the 

"Landers  v.  Stone,  45  Ind.  404;  "Landers  v.  Stone,  45  Ind.  404; 
Davis  V.  Hoover,  112  Tnd.  423,  14  N.  Springs  v.  Erwin,  6  Ired.  (N.  Car.) 
E.  468.  27. 


64  INDIANA    PROBATE   LAW.  §    50 

provision  defining  trust,  when  considered  separately  or  in  con- 
nection with  the  rest  of  the  will,  is  imperative,  or  evidences  no  in- 
tention on  the  part  of  the  testator  of  reposing  any  such  special  or 
personal  confidence  or  discretion  in  the  executors  as  would  dis- 
sociate the  trust  confided  to  them  from  their  office  as  executors, 
or  prevent  them  from  fully  administering  it,  an  administrator 
with  the  will  annexed  will  be  entitled  to  complete  the  execution 
of  the  trust."** 

§  50.  Foreign  executors  to  have  preference. — If.  before 
the  grant  of  letters  here,  in  case  any  person  not  an  inhabitant  of 
the  state  shall  die,  leaving  assets  therein,  or  assets  shall  come  into 
it  after  his  death,  it  shall  appear  that  letters  testamentary,  or  of 
administration  with  the  will  annexed,  have  been  granted  on  such 
estate  by  competent  authority,  in  any  other  of  the  United  States, 
then  the  person  so  appointed,  on  producing  such  letters,  shall  be 
entitled  to  letters  in  preference  to  all  other  persons,  except  cred- 
itors, legatees  and  heirs  of  the  deceased  entitled  to  distribution 
who  are  inhabitants  of  this  state.^^ 

This  statute  only  gives  a  qualified  preference  to  a  foreign  ex- 
ecutor appointed  for  a  non-resident,  and  upon  a  compliance  by 

^'Jessup's  Siir.  Prac.  557;  Hood  v.  such  case  the  power  and  duty  are  not 

Hood,  85  N.  Y.  561;  Mott  v.  Acker-  those  of  executors  virtute  officii,  and 

man,  92  N.  Y.  539.    The  debate  has  do  not  pass  to  the  administrator  with 

turned  mainly  upon  the  inquiry  what  the   will    annexed.       But     outside    of 

were  the  distinctive  duties  of  an  exe-  such  cases  the  instances  are  numerous 

cutor  as  such,  and  when  they  were  to  in  which  by  the  operation  of  a  power 

be  regarded  as  not  appertaining  to  his  in  trust,  authority  over  the  real  estate 

office,  but  as  personal  to  the  trustee,  is  given  to  the  executor  as  such  and 

Where  the  will  gives  a  power  to  the  the  better  to  enable  him  to  perform 

donee  in  a  capacity  distinctively  dif-  the  requirements  of  the  will.   Jessup's 

ferent  from  his  duties  as  executor,  so  Sur.  Prac,  556:  Wager  v.  Wager,  89 

that  as  to  such  duties  he  is  to  be  re-  N.  Y.  161 ;   DePeyster  v.  Clendining, 

garded  wholly  as  trustee  and  not  at  8  Paige  (N.  Y.)  295;  Conklin  v.  Eg- 

all  as  executor;  and  where  the  power  erton,  21  Wend.  (N.  Y.)  430;  Edger- 

granted  or  the  duty  involved  implies  a  ton   v.    Conklin,   25    Wend.    (N.   Y.) 

personal  confidence  reposed  in  the  in-  224;  Roome  v.  Philips,  27  N.  Y.  357; 

dividual  over  and  above  and  beyond  Bain  v.  Matteson,  54  N.  Y.  663 ;  Bing- 

that   which   is   ordinarily   implied   by  ham   v.   Jones,   25   Hun    (N.   Y.)    6; 

the  selection  of  an  executor,  there  is  Pratt  v.  Stewart,  49  Conn.  339. 
no   room   for  doubt   or   dispute.     In        **  Burns'  R.  S.  1908,  §  2746. 


8    5^  LETTERS    TESTAMENTARY.  65 

such  executor  with  the  law  of  this  state  he  will  become  entitled  to 
letters  of  administration  with  the  will  annexed  of  the  estate  of  his 
testator  located  in  this  state.  Without  such  appointment  he 
would  have  no  right  of  control  over  the  assets  in  this  state.^*' 

Such  foreign  executor's  power  over,  and  disposition  of,  prop- 
erty in  this  state,  which  comes  under  his  control  by  virtue  of  an 
appointment  under  this  statute,  is  regulated  exclusively  by  the 
laws  of  this  state. 

§  51.  Executor  of  executor. — An  executor  of  an  executor 
shall  have  no  authority  to  commence  or  maintain  any  action  or 
proceeding  relating  to  the  estate,  or  rights  of  the  testator  of  the 
first  executor,  or  to  take  control  thereof  as  such  executor.^^ 

An  administrator  of  an  administrator  has  no  authority  to  ad- 
minister on  the  estate  of  the  first  intestate." 

This  statute  changes  the  rule  at  common  law.  By  that,  upon 
the  death  of  an  executor  testate,  the  executorship  devolved  upon 
his  executor;  and  upon  the  death  of  that  executor  testate,  the 
trust  passed  to  his  executor,  and  so  on,  so  long  as  the  chain  of 
representation  remained  unbroken  by  any  intestacy ;  and  upon  the 
death  of  one  or  more  joint  executors  the  trust  devolved  upon  the 
survivors,  and  would  ultimately  pass  to  the  executor  of  the  last 
survivor.  ^^ 

But  at  common  law  if  one  named  as  executor  dies  before  the 
will  has  been  proved  or  probated,  such  executorship  was  not 
transmissible  to  his  executor,  but  was  wholly  determined  by  his 
death,  and  an  administrator  with  the  will  annexed  must  be  ap- 
pointed.^* 

But  if  an  executor  dies  pending  the  settlement  of  his  trust,  it 
becomes  the  duty  of  his  administrator,  or  other  personal  repre- 

""Watkins  v.  Holman,  16  Pet.   (U.  "Williams   Extrs.   254;   Crafton  v. 

S.)    25.    10  L.   ed.   873;   Rosenthal  v.  Beal,  1  Ga.  322;  Wankford  v.  Wank- 

Renick,  44  111.  202.  ford,  1  Salk.  299. 

"Burns'  R.  S.  1908,  §  2813.  "Day  v.   Chatfeild,    1    Vern.    199; 

"Ray  V.  Doughty,  4  Blackf.   (Ind.)  Williams  Extrs.  2SS. 
115. 


5 — Pro.  L.wv. 


66  INDIANA    PROBATE    LAW.  §    52 

sentative,  to  account,  as  to  such  trust,  to  the  successor  of  the  ex- 
ecutor.'^^ 

>;  52.  Executor's  power  before  letters  issue. — Xo  executor 
named  in  the  will  shall  interfere  with  the  estate  entrusted  to  him 
further  than  to  preserve  the  same  until  the  issuing  of  letters,  hut 
for  that  purpose  he  may  prosecute  any  suit  to  prevent  the  loss  of 
any  part  thereof.  °® 

Under  this  statute  an  executor  named  in  the  will  has  no  power 
to  intermeddle  with  the  estate,  further  than  is  necessary  to  pre- 
serve the  same,  until  after  the  issuing  of  letters  testamentary,  and 
if  he  should  do  so  he  becomes,  in  effect,  an  executor  de  son  tort. 
But  for  the  purposes  for  which  he  may  interfere  with  the  estate, 
under  this  statute,  the  issuing  to  him  of  letters  will  relate  back  as 
of  the  death  of  the  testator.  He  holds  the  estate  as  trustee  for 
legatees,  creditors,  and  parties  interested  under  the  will ;  and 
pending  the  issuing  of  letters  and  his  qualifying  and  giving  bond, 
is  the  legal  representative  of  the  estate.^'  The  doctrine  of  rela- 
tion, however,  will  not  be  applied  where  its  effect  will  be  to  divest 
a  right  which  has  legally  vested  in  another  between  the  death  of 
the  testator  and  the  grant  of  letters.^*  It  exists  only  where  the 
act  to  be  validated  is  for  the  benefit  of  the  estate.^" 

Formerly  executors  could  neither  sue  nor  be  sued  until  after 
the  probate  of  the  will  and  the  issuing  of  letters  testamentary 
thereon.^''  But  this  rule  is  modified  to  a  certain  extent  by  the 
above  statute. 

"  Jarnagin  v.  Frank,  59  Miss.  393.  ''  Burns'  R.  S.  1908,  §  2740. 

In  Silvers  v.  Canary,  114  Ind.  129,  16  "  Shirley  v.  Healds,  34  N.  H.  407. 

N.  E.  166,  the  court  says :     "It  is  the  "**  Williams  Extrs.,  §  634. 

duty  of  executors  and  administrators  ^  Gilkey  v.  Hamilton,  22  Mich.  283; 

who    come   into    possession    of    trust  Crump  v.  Williams,  56  Ga.  590. 

property  to  settle  the  accounts  of  the  '"Call  v.   Ewing,   1   Blackf.    (Ind.) 

decedent    in    relation    to    the    trust.  301 ;     Calloway    v.     Doe,     1     Blackf. 

They  must  see  to  it    that    the    trust  (Ind)    372.     The  court   in    Stagg   v. 

fund  is  preserved,  but  they  are  not  Green,  47  Mo.  500,  says :     "The  exe- 

bound  to  execute  the  trust,  and  they  cutor  here  does  not,   as  in   England, 

may  pay  the  fund  over,  with  the  ap-  derive  his  power  solely  from  the  will, 

proval  of  the  court,    to    a    duly    ap-  but   the    law    imposes    certain   obliga- 

pointed  successor."    See  also  Lucas  v.  tions  upon  him  before  he  is  permitted 

Donaldson,  117  Ind.  139,  19  N.  E.  758.  to  execute  it.      The    statute    of    our 


§    =,;^  LETTERS   TESTAMENTARY.  6"/ 

Whenever  a  person  makes  a  will  the  presumption  arises  that  he 
disposes  of  all  his  property,  subject  to  his  disposition,  and  that  he 
did  not  die  intestate  as  to  any  of  his  property.  So  when  letters 
testamentary  are  issued  to  one  who  is  appointed  executor,  he  is 
empowered  to  administer  upon  the  entire  estate  whether  disposed 
of  by  the  will  or  not." 

The  property  of  the  testator  is  in  the  hands  of  the  executor 
even  before  the  probate  of  the  will,  and  he  may  exercise  many  of 
the  powers  of  ownership  over  it,  and  this  section  of  the  statute 
does  not  prohibit  his  taking  such  possession  of  the  property  of  the 
testator,  before  letters  issue,  as  may  be  necessary  for  its  preserva- 
tion and  safe  keeping.     He  cannot  dispose  of  it. 

§  53.  Similarity  of  powers. — The  modern  tendency  of  the 
law  is  to  assimilate  the  functions  of  the  two  classes  of  personal 
representatives,  executors  and  administrators,  and  to  recognize 
the  departure  of  their  functions  only  so  far  as  the  distinction  be- 
tween settling  testate  and  intestate  estates  fairly  produces  it.  Both 
are  required  to  take  out  letters  and  qualify  in  the  same  court,  and 
perform  the  duties  of  their  trust  upon  a  like  plan,  and  subject  to 
a  like  supervision.®"  Both  are  trustees  with  special  functions, 
differing  from  other  trustees  in  that  their  office  looks  to  the  wind- 
ing up  of  the  estate  and  a  speedy  determination  of  the  trust;  dif- 
fering from  one  another  only  in  so  far  as  the  course  of  adminis- 
tration is  affected  by  the  provisions  of  the  will,  and  the  personal 
confidence  reposed  in  the  executor  by  the  testator.®^ 

While  an  administrator  derives  his  authority  wholly  from  the 
court  and  the  law  of  his  appointment,  an  executor's  power  and 
right  to  act  is  derived  from  his  testamentary  appointment;  his 
powers,  under  the  law,  are  as  great  as  are  those  of  an  administra- 
tor, and  by  the  terms  of  the  will  may  be  much  greater.®* 

state  expressly  requires  two  things  of  Ind.   404;    Carroll   v.    Swift,    10   Ind. 

one  named  as  executor  before  letters  App.  170,  37  N.  E.  1061. 
can  issue  to  him :    First,  that  he  take        ""  Schouler  Extrs.  &  Admrs.,  §  2. 
the   oath ;    and   second,   that   he   give        *"  Schouler  Extrs.  &  Admrs.,  §  6. 
bond."  "^Williams    Extrs.    620;     Scott    v. 

°  Borgner  v.  Brown,  133  Ind.  391,  West,  63  Wis.  529,  24  N.  W.  161,  25 

33  N.  E.  92;   Landers  v.   Stone,  45  N.  W.  18.     In  Landers  v.  Stone,  45 


68  INDIANA    PROBATE    LAW.  §    53 

An  executor  has  no  power  over  the  fee-simple  estate,  unless 
authorized  by  the  will,  but  lie  may  maintain  ejectment  for  his 
testator's  lands  which  are  held  for  a  term  of  years."^  The  execu- 
tion of  a  will  in  another  state,  devising  land  lying  within  this 
state,  must  be  in  confomiity  to  the  laws  of  this  state.®*  An  exe- 
cutor derives  his  power  to  act  as  such  in  reference  to  the  transfer 
of  immovable  property,  from  a  compliance  with  the  law  of  the 
place  where  he  attempts  to  operate  under  the  will,  and  not  from 
the  will  alone;  and  executors  appointed  in  another  state  must 
comply  substantially  with  the  laws  in  this  state  in  reference  to 
such  executors,  before  they  can  be  recognized  here."'  Letters 
testamentary  give  the  executor  the  power  and  right  to  administer 
all  the  property  of  the  testator,  though  a  part  of  the  property  be 
not  bequeathed  by  the  will."* 

The  functions,  powers,  duties,  rights  and  liabilities  of  an  exec- 
utor are  in  most  respects  identical  with  those  of  an  administra- 
tor. An  administrator's  grant  of  power  comes  from  the  law,  an 
executor's  from  the  will ;  but  in  so  far  as  no  other  provision  is 
made  in  the  will,  an  executor  acts,  in  the  settlement  of  the  estate, 
under  the  same  law  as  an  administrator.  In  so  far,  however,  as 
its  administration  is  concerned,  he  must  follow  the  provisions  of 
the  "will  if  they  are  not  contrary  to  law. 

Upon  the  similarity  of  the  duties,  powers,  etc.,  of  the  two 
classes  of  officers,  Mr.  Woerner,  in  his  valuable  work,  has  this 
to  say:  "But  however  great  the  similarity  between  the  two 
offices  may  be,  there  are  some  essential  distinctions  which  cannot 
be  ignored  or  abolished,  even  by  legislation,  without  a  change  in 
the  law  of  administration  so  radical  as  to  be  improbable  at  least 
for  many  years  to  come."*^ 

Ind.    404,    the    court    says:      "When  (Ind.)   117;  Smith  v.  Dodds,  35  Ind. 

there  is  no  will  an  administrator  is  452. 

appointed  and  is  succeeded  by  an  ad-  ^Calloway  v.  Doe,  1  Blackf.  (Ind.) 

ministrator    de    bonis    non,    and   they  372. 

act    under   and    in    pursuance    of    the  "Lucas  v.  Tucker,  17  Ind.  41. 

statute."  ■"  Landers  v.  Stone,  45  Ind.  404. 

*°Duchane  v.   Goodtitle,    1    Blackf.  ^Woerner    Am.    Law.    Admin.,    § 

171. 


§    53  LETTERS    TESTAMENTARY.  69 

He  further  says:  "The  decisive  difference  between  them 
arises  out  of  the  method  of  their  appointment ;  executors  repre- 
sent their  testators  by  virtue  of  the  act  of  the  testator  himself, 
while  the  authority  of  the  administrator  is  derived  exclusively 
from  the  appointment  by  some  competent  court." 

"An  important  distinction  exists  also  in  respect  of  the  power 
to  hold,  manage  and  alienate  the  property  of  the  deceased;  the 
authority  of  the  administrator  is  commensurate  with  the  provi- 
sions of  the  law  on  the  subject,  as  existing  and  recognized  in  the 
forum  of  his  appointment ;  but  the  will  of  the  testator  is  in  itself 
a  law  to  the  executor,  which  may  enlarge  or  circumscribe  the 
authority  or  discretion  which  an  administrator  would  have,  and 
which,  to  the  extent  in  which  it  is  not  repugnant  to  the  law  of 
the  state,  he  must  strictly  obser\^e."'° 

At  common  law  the  executor's  rights  and  powers  were  de- 
rived from  the  will,  and  it  became  operative  at  the  death  of  the 
testator.  The  probating  of  the  will,  the  qualifying  of  the  exe- 
cutor, his  letters,  etc..  were  mere  ceremonies  of  authentication.^^ 
But  this  doctrine  has  been  materially  modified  in  most  of  the 
states.  In  one  case  it  is  said :  "The  fact  that  one  named  in  the 
will  as  executor  does  not,  as  at  common  law,  make  him  executor 
in  fact,  but  only  gives  him  the  right  to  become  executor  upon 
complying  with  the  conditions  required  by  law.""" 

'"  Woerner  .-Km.  Law  Admin.,  §  v.  Fo.x.  1  Plowd.  275 ;  Johnes  v.  Jack- 
171.  son,  67  Conn.  81,  34  Atl.  709. 

"Williams  Extrs.  239;  Wankford  "  Stagg  v.  Green,  47  Mo.  500; 
V.  Wankford,  1  Salk.  299 ;  Graysbrook     Shoenberger  v.   Lancaster   Sar.  Inst., 

28  Pa.  St.  459. 


CHAPTER  IV. 


EXECUTORS   AND   ADMINISTRATORS. 


54.  DitTerent  kinds.  §  66. 

55.  Special    administrator   where   is  67. 

delay.  68. 

56.  Special  administrator  in  contest 

of  will.  69. 

57.  Powers  of  special  administrator.  70. 

58.  Administrator  of  absentee.  71. 

59.  Same— Powers  of  administrator.  71. 

60.  Same — Presumption  of  death.  72i. 

61.  Administrator  de  bonis  non.  74. 

62.  Same— There  must  be  a  vacancy.  75. 

63.  Same — There  must  be  assets. 

64.  Same — Time   within   which   ap-  "?(>. 

pointment  may  be  made.  77- 

65.  Same — Devastavit  of  former  ad-  78. 

ministrator. 


Same— Right  to  sue. 

Same — Admissions. 

Same — Appointment  after  final 
settlement. 

Executor  de  son  tort. 

Same— The  statute. 

Same — Statute  construed. 

Same — Statute  construed. 

Same — Intermeddlers'  rights. 

Same — Rights  of  widow. 

Joint  executors  and  administra- 
tors. 

Same — Joint  liability,  etc. 

Same — Actions  by  and  against. 

Administrators  in  case  of 
wrongful  death. 


§  54.  Different  kinds. — Besides  the  original  administration 
already  considered  there  is  known  to  the  law  certain  secondary 
and  limited  administrations.  They  are  denominated  in  the  books 
as  administration  cum  testamento  annexo;  administration  de 
bonis  non ;  administration  durante  minore  setate ;  administration 
durante  absentia;  administration  pendente  lite,  and  administra- 
tion ad  colligendum.^ 

Most  of  these  special  and  limited  administrations,  under  one 
form  or  another,  are  known  to  the  laws  of  this  state,  and  are 
recognized  by  statute.  They  are  all  however,  governed  and  con- 
trolled by  the  same  rules  of  procedure  as  is  the  original,  or  prin- 
cipal, administration. 


^  19  Am.  &  Eng.  Encyc.  L.  209. 


70 


§    55  EXECUTORS   AND   ADMINISTRATORS.  7I 

Such  administrations  are  special  in  their  nature  and  merely 
temporary,  and  with  the  exception  of  an  administration  de  bonis 
non,  they  are  limited  in  their  powers,  and  are  usually  confined 
to  the  collection  and  preservation  of  the  property  of  a  decedent 
until  a  proper  administrator  is  appointed."  Such  special  adminis- 
trators are  appointed  for  temporary  purposes  and  not  as  perma- 
nent representatives  of  the  decedent's  estate. 

When  the  time  for  the  appointment  of  a  regular  administrator 
arrives,  or  the  condition  of  atlairs  which  made  the  appointment 
of  a  special  administrator  necessary  has  ceased  to  exist,  then  the 
special  letters  may  be  superseded  by  general  letters  of  administra- 
tion.^ 

§  55.  Special  administrator  where  is  delay. — If,  from  any 
cause,  delay  is  necessarily  occasioned  in  granting  letters,  or  if, 
before  the  expiration  of  the  time  allowed  by  law  for  the  issuing 
thereof,  any  competent  person  shall  file  his  affidavit  with  the 
clerk  of  the  court  that  any  one  is  intermeddling  with  the  estate, 
or  that  there  is  no  one  having  authority  to  take  care  of  the  same, 
the  proper  clerk  or  court  shall  issue  special  letters  of  administra- 
tion to  some  competent  person,  to  collect  and  preserve  the  prop- 
erty of  the  testator  or  of  the  intestate  until  demanded  by  an  exe- 
cutor or  administrator  duly  authorized  to  administer  the  same, 
when  such  special  letters  shall  be  deemed  revoked.* 

It  is  not  every  delay,  however,  that  will  warrant  the  appoint- 
ment of  a  special  administrator.    If  the  delay  will  not  necessarily 

"Tomlinson  v.  Wright,  12  Ind.  App.  tor  of  the  estate  of  the  decedent,  not- 

292,  39  X.  E.  884 ;  State  v.  Tomlinson,  withstanding  an  appeal  has  been  taken 

16  Ind.  App.  662,  45  X.  E.   1116,  59  from    the    judgment    declaring    such 

Am.  St.  335.  will    invalid,    and   a   supersedeas    ob- 

^  Hayes    v.     Haj'es,    75     Ind.     395.  tained  from  the  appellate  court,  and 

In  this  case  it  is   held  that  where  a  notwithstanding  the  fact  that  a  spe- 

will   is  offered   for  probate,   and  the  cial  administrator  was  appointed  pend- 

probate  and  validity  of  such  will   is  ing  the  proceedings    to    contest    such 

contested,    and   upon    trial    such    pro-  will,  and  who  was  still  acting  as  such 

bate  is  refused  and  the  will  adjudged  when  such  appeal  was  taken  and  such 

to  be  invalid,  that  the  court  exercis-  general  administrator  was  appointed, 

ing  probate  jurisdiction  has  authority  *  Burns'  R.  S.  1908,  §  2753. 
to  then  appoint  a  general  administra- 


^2  INDIANA    PROBATE    LAW.  §    55 

or  probably  cause  loss  to  the  estate,  or  jeopardize  the  rights  or 
remedies  of  persons  interested  therein,  there  will  be  no  need  of 
a  special  administrator. 

It  has  been  held  to  authorize  the  granting  of  special  letters 
where  there  were  outstanding  promissory  notes,  or  other  un- 
secured claims,  the  collection  of  which  would  be  doubtful  if 
there  was  any  delay.'' 

A  special  administrator  may  be  appointed  for  the  sole  purpose 
of  prosecuting  or  defending  a  particular  suit  if  there  is  deemed 
a  present  urgent  necessity  for  it.®  Such  an  appointment  would 
create  an  administration  pendente  lite. 

The  statute  says  that  special  letters  shall  be  granted  to  "some 
competent  person."  thus  vesting  in  the  probate  court  a  large  dis- 
cretion. Any  one  who  is  competent  to  receive  general  letters  of 
administration  would  be  competent  under  this  statute,  but  it 
might  be,  by  reason  of  interest  in  some  pending  litigation,  or 
bias  or  prejudice  of  some  sort,  that  to  appoint  any  of  such  per- 
sons would  be  improper  and  adverse  to  the  best  interest  of  the 
estate  to  be  subserved  by  such  appointment. 

It  is  said  in  one  case : 

"It  is  important  that  a  person  intrusted  with  temporary  ad- 

°  Matthews  v.  American  Cent.   Ins.  28  L.  ed.  1015,  5  Sup.  Ct.  652.    Letters 

Co.,  154  N.  Y.  449,  48  N.  E.  751,  61  of  administration    pendente    lite   will 

Am.  St.  627,  39  L.  R.  A.  433;  Matter  not  be  revoked  and  general  adminis- 

of   Eddy's   Estate,   10   Misc.    (N.  T.)  trator  appointed  pending  the  determin- 

211,     31     N.     Y.     S.     423.     The     ap-  ation   of   the    litigation.       Robinson's 

pointment     of     a     temporary     repre-  Estate,    12    Phila.    (Pa.)     170.      "Lis 

sentative    who    may    take    the    nee-  pendens  is  'a  pending  suit.'     So  that, 

essary  steps  to  prosecute  an  action  on  as  long  as  the  lis  continues  pendens, 

an  insurance  policy  within  the  period  so    long    does    the    administrator    ap- 

limited  may  be  necessary  in  case  of  a  pointed    during    litigation,    remain    a 

loss  occurring  after  the  death  of  the  provisional    administrator.      And    the 

insured,  if  the  appointment  of  a  gen-  pendens  of  the  lis  is  not  disturbed  nor 

eral  representative  cannot  for  any  rea-  in  any  manner  affected  by  the  fact  of 

son  be  secured  with  ordinary  prompt-  an  appeal  taken  from  the  circuit  court 

ness.  to  this  court.     The  litigation  or  con- 

'Wade  V.  Bridges,  24  Ark.  569;  test  still  goes  on;  and  the  power  of 
Wolffe  V.  Eberlein,  74  Ala.  99,  49  Am.  the  temporary  administrator  still  re- 
Rep.  809 ;  Woolley  v.  Green,  3  Phillim.  mains  unaffected  by  the  varying  for- 
314;  McArthur  v.  Scott,  113  U.  S.  340,  tunes  or  vicissitudes    of    the    pending 


§    56  EXECUTORS    AND    ADMINISTRATORS.  73 

ministration  should  be  not  only  competent  and  honest,  but  disin- 
terested ;  and  if  he  had  to  be  either  a  relative  or  a  creditor  of  the 
deceased  it  might  often  be  veiy  difficult  to  select  a  temporary 
administrator  who  should  be  indifferent  as  between  the  parties 
to  a  contest  among  applicants  for  permanent  administration  or  a 
contest  over  the  probate  of  a  will."' 

In  one  case  the  court  refused  to  appoint  a  party  to  the  litiga- 
tion f  and  again  one  who  was  named  executor  in  the  will  was  re- 
fused appointment  as  special  administrator  because  being  the 
chief  beneficiary  in  the  will  it  was  believed  his  interest  was  hos- 
tile to  the  heirs  or  next  of  k'mf  so  where  the  person  named  as 
executor,  is,  in  a  contest  of  the  will  charged  with  having  exer- 
cised undue  influence  over  the  testator,  his  appointment  as  spe- 
cial administrator  was  refused.^'' 

^  56.  Special  administrator  in  contest  of  will. — When  any 
person  shall  have  died  testate,  and  notice  of  contest  of  the  will 
of  said  testator  shall  have  been  given,  as  required  by  law,  it  shall 
be  lawful  for  the  proper  court  to  appoint  a  special  administrator, 
who  shall  proceed  to  collect  the  debts  due  said  testator,  by  suit  or 
otherwise,  and  to  sell  the  personal  property  of  said  testator,  and 
also  to  pay  tlie  claims  against  his  estate,  in  the  same  manner  and 
under  the  same  regulations  as  are  now  required  of  administrators 
of  intestates,  so  far  as  the  same  may  be  done  consistent  with  the 
terms  of  such  will.^^ 

In  construing  this  section  our  Supreme  Court  says : 
"This  section  was  enacted  in  order  that  actions  to  contest  wills 
might  not  unnecessarily  delay  the  settlement  of  estates.    It  should 
receive  a  construction  consistent  with  such  intent.   Under  its  pro- 
visions a  court  may  appoint  a  special  administrator  whose  duty 

controversy."     State  v.  Guinotte,   156  °  Howard  v.  Dougherty,  3  Redf.  (N, 

Mo.  513,  57  S.  W.  281,  50  L.  R.  A.  Y.)  535. 

787n;  Gilman  v.  Hamilton,  16  111.  225;  "  Cornwell  v.  Cornwell,  1  Dem.  (N. 

Krug  V.  Davis,  101  Ind.  75.  Y.)  1 ;  Wanninger's  Estate,  3  N.  Y.  S. 

'Matter  of  Plath,  56  Hun  (N.  Y.)  107. 

223,  9  X.  Y.  S.  251.  "Burns'  R.  S.  1908,  §  2755. 

'Crandall  v.  Shaw,  2  Redf.  (N.  Y.) 
100. 


74 


INDIANA    PROBATE    LAW.  §    56 


it  is  to  proceed  with  the  collection  of  debts,  the  sale  of  personal 
property,  and  the  payment  of  claims  against  the  estate,  the  same 
as  is  required  of  an  administrator  of  an  intestate,  and  have  the 
same  as  near  ready  for  settlement  and  distribution  by  the  time 
the  will  contest  is  determined,  as  is  possible.  Said  section  ex- 
pressly authorized  appellee,  as  special  administrator,  to  sell  the 
personal  property  of  said  deceased. "^■- 

The  policy  of  the  law  is  to  give  the  court  complete  and  contin- 
uous jurisdiction  over  estates  by  special  administration,  so  long 
as  for  any  cause  there  is  no  person  entitled  to  take  charge  of 
them  under  general  letters;  but  it  must  be  obsen-ed  that  the  pro- 
ceedings in  the  general  administration  of  an  estate  are  separate 
and  distinct  from  those  under  a  si)ecial  administration.  In  the 
latter  the  court  acquires  jurisdiction  only  for  the  purpose  of  the 
special  administration.^^ 

The  reasons  for  the  appointment  of  a  special  administrator 
while  a  contest  of  the  will  is  pending  are  obvious.  They  are  that 
there  mav  be  some  one  to  act  as  curator  of  the  estate  to  presence 
it,  while  the  executor  named  in  the  will  is  not  qualified  to  act. 
As  soon  as  a  final  determination  of  the  contest  has  established 
the  validity  of  the  will  or  otherwise,  and  thereby  qualified  the 
executor  under  it  to  act,  or  brought  about  the  appointment  of  a 
regular  administrator,  the  reasons  for  continuing  a  special  one 
cease. 

The  temporaiT  administrator  while  in  charge  acts  in  the  char- 
acter of  a  receiver,  and  should  take  charge  of  all  the  property, 
the  right  to  which  may  be  affected  by  the  contest,  to  preserve  it 
for  those  who  may  be  entitled  to  it  at  the  end  of  the  suit.  His 
duties  commence  from  the  date  of  the  order  of  appointment,  and 
if  the  decree  in  the  action  is  appealed  from  his  duties  do  not 
cease  until  the  appeal  has  been  disposed  of.  An  appeal  being  a 
continuation  of  the  suit.^* 

"Bruning  v.  Golden,  159  Ind.   199,  ard's  Estate,   141   Mo.  642,  43   S.  W. 

64  N.  E.  657.  617;   Brown  v.   Ryder,  42   N.  J.  Eq. 

"  Damke's  estate,  133    Cal.    433,   65  356,  7  Atl.  568 :  Foster  v.  Rucker,  26 

Pac.  888.  ^lo.  494;  Woerner  Am.  Law  Admin., 

"Lamb  v.  Helm,  56  Mo.  420;  Soul-  §  181. 


§    57  EXECUTORS   AND   ADMINISTRATORS.  75 

§  57.  Powers  of  special  administrator. — Such  special  ad- 
ministrator may  prosecute  suits  to  collect  debts,  secure  the  pos- 
session of  and  preserve  the  property  of  the  decedent;  and,  under 
the  direction  of  the  court,  may  sell  property  of  a  perishable  na- 
ture, after  appraisement  and  notice,  as  in  sales  of  personal  prop- 
erty by  an  administrator.^^ 

The  duties  of  a  special  administrator  are  to  preserve  and  pro- 
tect the  estate  until  it  can  be  placed  in  the  hands  of  the  perma- 
nent executor  or  administrator.^*^  No  authority  is  conferred 
upon  him  to  pay  claims  or  to  make  distribution  of  the  funds  in 
his  hands.  Nor  will  he  be  required  to  file  an  inventory.  As  he 
has  no  power  to  pay  claims,  so  he  has  no  power  to  allow  them 
against  the  estate.  All  he  is  authorized  to  do  is  to  receive  and 
collect  debts  due  the  estate  and  to  preserve  the  property  of  the 
estate  pending  the  appointment  of  an  administrator.^^ 

When  a  special  administrator  has  been  appointed  it  is  pre- 
sumed that  facts  existed  authorizing  the  appointment;  and  the 
fact  that  the  showing  made  for  an  appointment  is  insufficient 
under  the  statute  is  no  more  than  an  irregularity  which  does  not 
affect  the  jurisdiction  of  the  court. ^* 

The  principal  duty  of  a  special  administrator  being  to  preserve 
the  estate,  to  accomplish  this  purpose  he  is  necessarily  vested 
with  the  same  power  as  a  general  administrator;  and  while  his 

^  Burns'  R.  S.  1908,  §  2754.  he  has  in  his  hands,  and  which  it  is 

*"  Woerner  Am.  Law  Admin.,  §  181.  his  duty,  under  the  statute,  to  hold  or 

"  Tomlinson  v.  Wright,  12  Ind.  App.  preserve  until  an  administrator,  duly 

292,  39  N.  E.  884.    If  it  was  conceded  authorized  to  administer  the  same,  is 

that   a    general    administrator   might,  appointed.    The  statute  certainly  does 

under  some  circumstances,  enter  into  not  contemplate  that  a  special  admin- 

an  agreed  case  or  agree  on  the  facts  istrator   shall    administer    an     estate, 

in  a  case  and  invoke  the  judgment  of  His  authority,  as  we  have  before  ob- 

the  proper  court  thereon,  or  if  it  was  served,    is    limited    to    collecting    the 

conceded  that  a  special  administrator  debts  and  securing  and  preserving  the 

in  the  collection  of  a  debt  might  en-  assets  pending  the  appointment  of  the 

ter   into   an    agreed    case    in    relation  general  administrator, 

thereto,  the  question  would  yet  remain  "  Lethbridge  v.  Lauder,  1.1  Wyo.  9, 

whether    such    special    administrator  Td  Pac.  682;  State  v.  Ayer,  17  Wash, 

could  enter  into  such  agreed  case  in  127,  49  Pac.  226. 
relation  to  money  or  property  which 


76  INDIANA    PROBATE    LAW.  §    58 

powers  are  limited  yet  whatever  he  does  within  the  scope  of  his 
authority  is  biiKhng  upon  the  estate.^" 

His  power  to  sell  property  of  the  estate  under  this  statute  is 
limited  to  personal  property,  and  only  such  personal  proj^erty  as  is 
of  a  perishable  nature. 

The  functions  of  a  special  administrator  continue  until  perma- 
nent letters  are  issued.  It  is  not  necessary  that  any  application 
to  revoke  his  letters  be  made  before  the  appointment  of  a  general 
representative.  The  very  term  temporary  administrator  suggests 
that  the  authority  of  such  an  officer  is  to  be  deemed  extinguished 
by  the  issuance  of  permanent  letters. 

The  general  rule  that  letters  of  administration,  having  once 
been  properly  issued,  confer  upon  tlie  appointee  the  right  to 
fully  administer  the  estate  of  the  decedent,  is  modified  by  these 
statutes,  and  the  duties  and  powers  of  a  person  appointed  un- 
der them  are  such  only  as  are  specially  granted.  Such  appointee 
has  not  the  authority  to  complete  the  administration,  and  should 
be  superseded  as  soon  as  the  occasion  for  his  appointment  has 
passed. "^ 

§  58.  Administrator  of  absentee. — There  is  another  spe- 
cies of  administration  which  is  special  in  the  method  and  char- 
acter of  the  appointment  of  the  administrator,  but  general  in  the 
method  and  character  of  the  administration  of  the  estate. 

The  occasion  for  such  administration  arises  when  any  resident 
of  this  state  shall  have  absented  himself  from  his  usual  place  of 
residence  and  gone  to  parts  unknown,  for  a  period  of  five  years, 

"  Woerner  Am.  Law  Admin.,  401.  property  of  the  testator  or  of  the  in- 

""  When  the  contest  as  to  will  is  over  testate  until  demanded  by  an  executor 

and  the   executor  qualifies  the   func-  or    administrator    duly    authorized   to 

tions  of  a  special  administrator  are  at  administer   the    same,"   a   special    ad- 

an  end.     RoBards   v.   Lamb,  89   Mo.  ministrator  has  no  power  to  enter  into 

303,  1  S.  W.  222.     One  who  is  an  in-  an  agreed  case  with  the  widow  with 

different    party    should    be    appointed  reference  to  the  disposition  of  the  pro- 

and  not  one  of  the  litigants.     Mootrie  ceeds   of  an  insurance  policy  on  de- 

V.  Hunt,  4  Bradf.  (N.  Y.)  173.  Under  cedent's  life,  collected  by  him  as  spe- 

Burns'   R.    S.    1908,   §  2753,  declaring  cial     administrator.       Tomlinson     v. 

that  the  powers  of  a  special  adminis-  Wright,    12  Ind.   App.  292,  39  N.   E. 

trator  are  "to  collect  and  preserve  the  884. 


§    58  EXECUTORS    AND    ADMINISTRATORS.  "JJ 

without  having  made  any  sufficient  provision  for  the  care  and 
management  of  his  property,  real  or  personal,  owned  by  him  at 
the  time  he  so  absents  himself,  or  which  may  be  subsequently 
acquired  by  him,  either  by  inheritance  or  otherwise,  and  when  in 
such  case,  at  any  time,  it  shall  be  made  to  appear  to  the  satisfac- 
tion of  the  court,  having  probate  jurisdiction  in  the  county  where 
such  person  last  resided,  or  where  such  property  is  situated,  by 
complaint  and  proof,  after  thirty  days'  notice  to  such  person,  by 
puljlication  in  a  newspaper  of  general  circulation,  published  at 
the  capital  of  the  state,  and  also  in  a  paper  published  in  such 
county,  if  there  be  any,  that  such  property  is  suffering  waste  for 
want  of  proper  care  or  that  the  family  of  such  person  are  in  need 
of  the  use  and  proceeds  of  such  property,  for  their  support  or 
education,  (or  that  the  sale  of  any  such  property,  or  part  thereof, 
shall  be  necessary  for  the  payment  of  his  debts,)  it  shall  be  pre- 
sumed and  taken  by  such  court,  that  such  person  is  dead,  and  the 
court  shall  have  jurisdiction  over  the  estate  of  such  person  in 
the  same  manner  and  to  the  same  extent  as  if  he  were  dead,  and 
shall  appoint  an  administrator  of  his  estate,  who  shall  have  all 
of  the  powers  and  rights  over  such  estate  and  be  subject  to  all  of 
the  liabilities  and  duties  in  relation  thereto  that  appertain  to  ad- 
ministrators of  decedents'  estates."^ 

This  statute  has  been  held  to  be  constitutional,  and  as  not  con- 
travening either  the  federal  or  state  constitutions.-" 

In  construing  a  similar  statute  the  United  States  Supreme 
Court  in  the  case  of  Cunnius  v.  Reading  School  District,  198  U. 
S.  458,  49  L.  ed.  1 125,  25  Sup.  Ct.  721,  held  in  substance  that  the 
right  to  regulate  concerning  the  estate  or  property  of  absentees  is 
an  attribute  which  in  its  essence  belongs  to  all  governments  to  the 
end  that  they  may  be  able  to  perform  the  purposes  for  which  gov- 
ernment exists,  and  is  within  the  scope  of  a  state  government  in 
the  absence  of  restrictions  in  its  own  constitution,  and  the  exercise 
of  this  power  by  the  state  does  not  necessarily  violate  the  four- 

" Acts  1911,  p.  676,  amending  §  2747        -Barton    v.    Kimmerley,    165    Ind. 
Burns'  R.  S.  1908.  609,  1(y  N.  E.  250,  112  Am.  St.  252. 


y8  INDIANA    PROBATE    LAW.  §    59 

teenth  amendment  of  the  federal  constitution,  by  depriving  the 
absentee  of  his  property  without  due  process  of  law  in  case  he  be 
alive  when  the  proceedings  are  begun. -^ 

§  59.  Same — Powers  of  administrator. — This  statute  be- 
ing in  derogation  of  the  common  law  must  be  strictly  construed, 
and  nothing  may  be  read  into  it  that  its  words  do  not  fairly  im- 
port. An  administrator  appointed  thereunder  must  be  careful 
in  all  respects  to  comply  with  the  statute. 

The  statutes  relating  to  his  powers  and  duties  are  as  follows : 

The  property  of  such  departed  person  real  and  personal,  and 
all  his  rights,  obligations  and  choses  in  action,  shall  be  subject  to 
the  same  liabilities,  incidents,  rights,  management  and  disposal 
in  all  respects  as  if  such  person  were  known  to  be  deceased,  and 
all  adjudication  and  acts  done  by  such  administrator  shall  be 
valid,  effectual  and  binding  on  such  person,  should  he  return,  as 
if  they  were  his  own  acts,  the  acts  and  doings  of  such  adminis- 
trator being  in  good  faith  and  without  fraud.-* 

Such  administrator  shall  not  be  discharged  on  the  return  and 
reappearance  of  such  person  until  discharged  by  the  court,  but 
shall  retain  his  powers  and  rights  and  be  subject  to  all  his  official 
liabilities  and  duties  until  so  discharged."^ 

In  selecting  an  administrator  under  the  provisions  of  these 
statutes  the  court  may  apply  the  test  of  the  statute  relating  to 

^  In  the  matter  of  Nolting,  43  Hun  surrogate,  was  sufficient  to  justify  the 
(N.  Y.)  456,  it  appeared  that  the  al-  issuing  of  letters  of  administration, 
leged  decedent  had  left  his  home  un-  and  that  the  surrogate  erred  in  refus- 
der  the  depression  following  an  attack  ing  to  do  so.  Redf.  Sur.  Prac.  153. 
of  delirium  tremens,  declaring  his  in-  The  fact  that  a  passenger  on  an 
tention  to  commit  suicide,  and  had  ocean  vessel  was  last  seen  about  10 
gone  toward  the  river ;  that  thereafter  o'clock  at  night,  when  the  steamer  was 
he  had  not  been  heard  from  for  more  in  midocean,  and  was  never  seen  or 
than  ten  years,  although  previously  he  heard  of  afterwards,  though  diligent 
had  communicated  regularly  with  search  was  made,  is  sufficient  to  justi- 
his  relatives.  Held  that,  from  his  fy  a  finding  that  he  is  dead.  Travel- 
silent  absence  during  ten  years,  the  ers'  Ins.  Co.  v.  Rosch,  23  Ohio  C.  C. 
law  would  raise  a  presumption  of  his  491. 

death,  which,  coupled  with  the  facts  ^Burns'  R.  S.  1908,  §  2752. 

and    circumstances    produced   to    the  ^  Burns'  R.  S.  1908,  §  2749. 


§    6o  EXECUTORS    AND    ADMINISTRATORS.  79 

applicants  for  letters  of  general  administration  as  to  order  of 
preference,  qualification  and  fitness.-" 

If  the  requirements  of  the  statute  have  been  observed  in  mak- 
ing the  appointment  the  validity  of  the  proceedings  will  not  be 
affected  by  the  fact  that  the  absentee  was  in  truth  alive.  It  is  not 
necessary  to  show  that  he  is  dead.-^ 

The  absentee  is  not  required  to  have  been  a  resident  of  the 
county  where  an  application  for  letters  is  made.  Letters  may  is- 
sue in  the  county  where  he  last  resided  or  in  some  county  where 
his  property  is  situated.  It  is  sufficient  to  show  that  he  had  been 
a  resident  of  this  state  prior  to  his  disappearance.  The  court  can 
then  take  jurisdiction  to  make  an  appointment  in  either  county.-^ 

Under  statutes  such  as  these  it  has  been  held  that  they  operate 
upon  the  estates  of  persons  whose  absence  began  before  the  pass- 
age of  the  statute.-^ 

After  the  appointment  of  an  administrator  of  the  estate  of  an 
absentee,  so  far  as  the  property  of  such  person  is  concerned,  the 
situation  is  the  same  as  if  he  was  actually  dead,  and  the  wife  of 
such  departed  person  shall  have  all  the  rights  and  independent 
powers  of  feme  sole  to  make  contracts  and  execute  deeds  and  ac- 
quittances for  herself,  from  the  time  of  the  appointment  of  such 
administrator  until  the  return  of  her  husband  and  the  resump- 
tion of  his  rights  as  such  husband. ^"^ 

§  60.  Same — Presumption  of  death. — At  common  law  one 
was  not  presumed  dead  until  after  an  unexplained  absence  of 
seven  years ;  but  there  is  no  presumption  as  to  the  time  of  death 
within  the  seven  years,  and  in  the  absence  of  proof  the  absentee 
is  presumed  to  be  living  for  seven  years  from  the  time  of  his  dis- 
appearance.'^ 

=«  Savings  Bank  v.  Weeks,  110  Md.  78,  72  Atl.  475,  22  L.  R.  A.   (N.  S.) 

78,  72  Atl.  475,  22  L.  R.  A.   (N.  S.)  221. 

221.  ^"Burns'  R.  S.  1908,  §  2750. 

"Romy  V.  State,  32  Ind.  App.  146,  ^  Lawson    Presumptive    Ev.,    255; 

67  X.  E.  998.  Schaub  v.  Griffin,  84  Md.  557,  36  Atl. 

=*Romy  V.  State,  22  Ind.  App.  146,  443;    In   re   Mutual   Benefit   Co.,   174 

67  N.  E.  998.  Pa.  St.  1,  34  Atl.  283,  52  Am.  St.  814, 

''  Savings  Bank  v.  Weeks,  110  Md.  2  Best  on  Ev.,  §  408. 


80  INDIANA    PROBATE    LAW.  §    60 

The  statutes  here  under  consideration  have  a  limited  applica- 
tion and  do  not  include  cases  lyin<^  outside  the  letter  of  them, 
and  in  cases  not  connected  with  administration  of  the  estates  of 
absentees  the  common-law  rule  as  to  the  presumption  of  death 
still  obtains." 

The  presumption  therefore  specified  in  the  statute  must  be 
limited  to  the  settlement  of  the  estates  of  absentees.  The  statute 
is  as  follows : 

The  presumption  of  death,  in  the  case  of  any  person  who 
has  absented  himself  from  his  usual  place  of  residence  and  gone 
to  parts  unknown,  or  who  has  not  been  heard  of  for  the  period  of 
five  years,  shall  relate  back  to  the  time  of  the  first  disappearance 
of  such  absentee;  and  it  shall  be  presumed  and  taken  by  all  courts 
that  such  absentee  was  dead  on  the  first  day  of  his  disappearance: 
Provided,  however,  That  this  section  shall  not  apply  to  any  suit 
now  pending-;  neither  shall  the  party  holding  or  entitled  to  the 
proceeds  of  any  policy  of  insurance  upon  the  life  of  such  absentee, 
where  the  five  years  have  expired  prior  to  the  passage  and  taking 
effect  of  this  act,  and  whose  duty  it  is  to  make  proof  of  the  death 
of  such  absentee,  be  recjuired,  when  such  proof  is  not  prohibited 
by  the  contract  with  the  insurer  to  make  other  proof  of  death  than 

'=  Connecticutt  Mut.  Life  Ins.  Co.  v.  such.  It  was  held  in  said  case  that, 
King.  —  Ind.  App.  — ,  93  N.  E.  1046.  under  a  law  giving  jurisdiction  to  a 
In  Scott  V.  McNeal,  154  U.  S.  34,  38  L.  court  to  administer  estate  of  deceased 
ed.  896,  14  Sup.  Ct.  1108,  the  facts  and  persons,  the  issuance  of  letters  of  ad- 
the  court's  holding  were  to  this  effect :  ministration  upon  the  estate  of  a  per- 
The  probate  court  in  the  state  of  son  who  is  in  fact  alive  was  void  and 
Washington  had,  under  an  act  for  the  of  no  effect  as  against  him.  In  Fleet- 
settlement  of  decedents'  estates,  issued  wood  v.  Brown,  109  Ind.  567,  9  N.  E. 
letters  of  administration  upon  the  352,  11  N.  E.  779,  it  is  held  that  where 
estate  of  a  person  who  had  disap-  the  owner  of  lands  is  absent  and  not 
peared,  and  proceeded  to  administer  heard  from  for  five  years  or  more, 
his  estate  as  that  of  a  dead  person,  that  a  conveyance  of  such  lands  by 
upon  the  presumption  of  death  which  persons  who  would  inherit  the  same 
said  court  assumed  has  arisen  from  in  the  event  of  the  death  of  such 
his  absence.  There  was  no  law  in  owner,  would  not  vest  any  title  in  a 
that  state  providing  for  the  adminis-  purchaser  from  such  supposed  heirs 
tration  of  the  estate  of  an  absentee  as  when  such  owner  was  not  in  fact  dead. 


6o 


EXECUTORS   AND   ADMINISTRATORS. 


8i 


the  fact  of  the  disappearance  of  the  insured  for  five  years  con- 
tinuously/^ 

It  is  conckisively  presumed,  in  a  collateral  proceeding,  that  a 
man  is  dead  when  letters  of  administration  are  granted  upon  his 
estate  by  the  proper  tribunal.^* 

By  these  statutes,  for  the  purpose  of  preserving  his  estate  and 
paying  his  debts,  a  man  is  presumed  to  be  dead  after  an  absence 
of  five  years." 

The  general  rule  is,  that  letters  of  administration,  granted  upon 
the  estate  of  a  living  person,  are  absolutely  void,  and  it  makes  no 
difference  if,  through  his  absence  long  continued,  a  presumption 
of  death  has  arisen.  In  such  case  the  presumption  may  be  over- 
thrown, and  a  decree  granting  letters  may  be  collaterally  im- 
peached.^*^ 

The  above  statutes  change  this  rule,  and  for  the  purposes  set 
out  in  the  statutes,  an  administration  under  them  upon  the  estate 
of  absentee  is  as  valid  and  binding  as  if  tlie  absentee  were  really 
dead. 


»  Burns'  R.  S.  1908,  §  2748. 

"Jenkins   v.    Peckinpaugh,   40   Ind. 
133. 

"Jones  V.  Detchon,  91  Ind.  154; 
Fleetwood  v.  Brown,  109  Ind.  567,  9 
X.  E.  352,  11  X.  E.  779.  In  Baugh  v. 
Boles,  66  Ind.  376,  the  court  says :  "It 
has  long  been  an  accepted  rule  of  law, 
both  in  England  and  in  this  country, 
that  where  a  person  has  left  his  usual 
place  of  abode,  and  no  intelligence 
concerning  him  has  been  received  by 
his  relatives,  or  by  those  who  would 
probably  hear  from  him,  if  living, 
after  the  lapse  of  seven  years  the  pre- 
sumption of  life  would  cease,  and  such 
person  would  be  presumed  to  be 
dead."  After  referring  to  the  statute 
providing  for  the  settlement  of  estates 
of  absentees,  the  court  continues:  "It 
seems  to  us,  therefore,  that,  under 
the  allegations  of  the  appellee's  com- 


plaint and  the  statute  of  this  state  ap- 
plicable thereto,  Henry  Baugh  was 
presumptively  dead,  after  he  had  been 
gone  from  the  state  for  five  years,  and 
no  tidings  received  of  or  from  him  by 
his  family  within  that  time.  After  the 
lapse  of  the  five  years,  the  appellee,  as 
a  creditor  of  Henry  Baugh,  could  have 
procured  the  appointment  of  an  ad- 
ministrator of  his  estate,  and,  under 
the  facts  stated  in  the  complaint,  such 
administrator  could  have  procured  an 
order  from  the  proper  court  for  the 
sale  of  the  lot  in  controversy,  for  the 
payment  of  such  decedent's  debts." 

"  Jochumsen  v.  Suffolk  Sav.  Bank,  3 
Allen  (Mass.)  87;  Devlin  v.  Common- 
wealth, 101  Pa.  St.  273,  47  Am.  Rep. 
710;  Hooper  v.  Stewart,  25  Ala.  408, 
60  Am.  Dec.  527 ;  Griffith  v.  Frazier,  8 
Cranch  (U.  S.)  9,  3  L.  ed.  471;  Fisk 
v.  Xorvel,  9  Tex.  13,  58  Am.  Dec.  128. 


6 — Pro.  L.\w. 


82  INDIANA    PROBATE    LAW.  §    6 1 

§  61.  Administrators  de  bonis  non. — If  any  executor,  ad- 
ministrator with  the  will  annexed,  or  administrator,  shall  die,  re- 
sign, remove  from  the  state,  or  his  authority  be  revoked  or  super- 
seded, the  remaining  executor  or  administrator  shall  complete  the 
administration  of  the  estate;  but  if  no  such  executor  or  adminis- 
trator be  remaining  in  the  state,  the  proper  clerk  or  court  shall 
grant  letters  of  administration,  or  of  administration  with  the  will 
annexed,  to  any  person  entitled  thereto,  under  the  same  regula- 
tions as  in  case  of  issuing  the  original  letters;  and  which  admin- 
istrator, or  administrator  with  the  will  annexed,  thus  appointed 
de  bonis  non,  shall  have  the  same  rights  and  be  subject  to  the 
same  liabilities  as  the  executor  or  administrator  first  appointed. ^^ 

The  administrations  de  bonis  non  and  cum  testamento  annexo 
provided  for  in  this  statute  are  supplementary  administrations, 
and  are  based  upon  the  fact  that  there  is  a  vacancy  in  the  pre- 
ceding administration,  and  if  there  is  no  such  vacancy  the  grant 
of  letters  of  administration  de  bonis  non  or  cum  testamento  an- 
nexo is  void. 

An  administrator  de  bonis  non  is  appointed  when  a  former 
administrator  has  partially  administered  an  estate  and  has  died, 
or  has  not  from  any  cause  fully  administered.  It  is  the  duty  of 
an  administrator  de  bonis  non  to  complete  the  administration  and 
for  this  purpose  he  is  vested  with  the  same  power  as  a  general 
administrator.  What  are  technically  known  as  administrators  de 
bonis  non,  cum  testamento  annexo,  are  those  who  are  appointed 
to  complete  the  execution  of  a  will,  when  the  executor  has  com- 
menced administering  and  dies,  or  otherwise  becomes  incapable, 
or  is  removed.^* 

If  the  resident  executor  or  administrator  cease  from  any  cause 

^'  Burns'  R.  S.  1908,  §  2756.    An  ad-  dence  of  such  assets  is  all  that  is  re- 

ministrator  de  bonis  non  may  be  ap-  quired.      Scott   v.    Fox,    14   Md.   388; 

pointed  where  the  original  administra-  Hendricks       v.       Snodgrass,       Walk, 

tor  has  reduced  all  the  assets  of  the  (Aliss.)   86.     The  appointment  of  an 

estate  to  money.     Donaldson  v.   Ra-  administrator  generally  without  add- 

borg,  26  Md.  312.    Letters  of  adminis-  ing   the   words    de   bonis   non  is    not 

tration  de  bonis  non  must  be  granted  void.      Moseley   v.    Mastin,   Ala.    Sel. 

in  every  case  where  there  are  unad-  Cas.   171. 

ministered  assets.     Prima    facie    evi-  ^^  Bouvier  Inst.   144. 


62 


EXECUTORS   AND   ADMINISTRATORS. 


83 


to  be  such,  it  is  the  duty  of  the  clerk  cr  court  to  appoint  an  ad- 
ministrator, resident  in  the  county  w^  ere  the  estate  is  to  be  ad- 
ministered, de  bonis  non.^^ 

An  administrator  de  bonis  non  may  be  appointed  even  where 
the  former  administrator  has  reduced  all  the  assets  of  the  estate 
to  money,  but  has  not  paid  it  out.*° 

An  administration  de  bonis  non  should  be  granted  where  there 
are  debts  unsatisfied  although  the  former  administrator  has  dis- 
tributed the  estate.^^ 

§  62.  Same — There  must  be  a  vacancy. — Before  an  admin- 
istration de  bonis  non  will  be  granted  there  must  be  a  vacancy, 
and  the  rule  formerly  was  that  such  vacancy  must  occur  prior 
to  the  final  settlement  of  the  estate.  It  being  held  that  after 
final  settlement  of  an  estate  all  matters  pertaining  to  the  ordi- 
nary settlement  of  the  estate  were  res  adjudicata;  and  that  so 
long  as  such  final  settlement  was  in  force  unrevoked,  letters  of 


^  Ewing  V.  Ewing,  38  Ind.  390. 

*'  Donaldson  v.  Raborg,  26  Md.  312. 

*^  Brattle  v.  Converse,  1  Root 
(Conn.)  174.  An  estate  is  not  fully 
administered  upon  so  long  as  any- 
thing remains  to  be  done  to  vest  the 
title  of  the  estate  in  the  beneficiary, 
whether  a  creditor,  devisee,  legatee 
or  next  of  kin,  which  no  one  but  the 
administrator  can  do.  Such  would 
be  paying  a  legacy  or  distributing  the 
assets.  Alexander  v.  Stewart,  8  Gill 
&  J.  (Md.)  226;  University  v. 
Hughes,  90  X.  Car.  537;  Scott  v. 
Crews,  72  Mo.  261.  Likewise  one 
may  be  appointed  to  defend  a  suit, 
even  though  all  the  assets  have  been 
distributed  for  the  purpose  of  de- 
fending the  distributees.  Scott  v. 
Crews,  72  Mo.  261;  Hayward  v. 
Place,  4  Dem.    (X.  Y.)   487.     If  the 


to  an  estate.  Hinton  v.  Bland,  81 
Va.  588.  But  such  an  administrator 
cannot  be  appointed  solely  to  make 
a  conveyance  of  real  estate  which  the 
former  administrator  failed  to  make. 
Grayson  v.  Weddle,  63  Mo.  523; 
Long  v.  Joplin  Mining  &c.  Co.,  68 
Mo.  422.  The  owner  of  a  claim 
against  an  estate,  holding  unadmin- 
istered  property,  may  properly  pro- 
cure the  appointment  of  an  admin- 
istrator de  bonis  non  to  take  posses- 
sion of  the  property  and  surrender 
the  property  to  him.  Deans  v.  Wil- 
coxon,  25  Fla.  980,  7  So.  163.  An 
administrator,  who  was  one  of  the 
residuary  legatees,  having  partly  ad- 
ministered the  estate,  left  his  home, 
and,  though  several  years  had  elapsed 
no  trace  of  him  could  be  discovered. 
It  was  held  that  the  court  might  re- 


final    settlement    of    an   administrator  voke  the  grant    made    to    him,    and 

be    set    aside    an    administrator    de  make  a  fresh  grant  de  bonis  non  to 

bonis  non  may  be  appointed.     Byerly  another  of  the  residuary  legatees.    In 

v.    Donlin,   72   Mo.   270.     So   one   is  re  Covell,  15  Prob.  Div.  8. 
necessary  where  money  is  to  be  paid 


84  INDIANA    PROBATE   LAW.  §    6^ 

administration  de  bonis  non  could  not  be  issued  on  the  estate, 
nor  any  further  administr  tion  permitted  thereon  by  any  exec- 
utor or  administrator,  however  appointed." 

When  letters  of  administration  de  bonis  non  are  attacked  on 
the  ground  that  there  is  no  vacancy,  the  fact  that  there  was  no 
vacancy  must  affirmatively  appear,  as  the  presumption  is  in  favor 
of  the  letters." 

It  must  be  shown  that  something  remains  to  be  done  in  the 
settlement  of  an  estate  before  an  administration  de  bonis  non 
will  be  granted  thereon;  but  the  mere  fact  that  a  prior  admin- 
istrator had  been  discharged  because  he  could  find  no  assets  be- 
longing to  the  estate  does  not  preclude  the  appointment  of  an 
administrator  de  bonis  non  for  such  estate.** 

There  can  never  be  any  valid  appointment  of  an  administrator 
de  bonis  non  until  there  is  in  some  way  a  vacancy  in  the  adminis- 
tration. Such  vacancy  may  arise  through  the  resignation,  re- 
moval or  death  of  the  general  administrator  or  executor,  or  after 
their  discharge  upon  a  final  settlement  of  the  estate. 

When  a  final  settlement  made  by  a  deceased  former  admin- 
istrator has  been  set  aside  an  administrator  de  bonis  non  should 
be  appointed  for  the  estate.*^  And  an  administrator  de  bonis 
non  is  a  necessary  party  where  money  is  to  be  paid  to  the  estate.*® 

§  63.  Same — There  must  be  assets. — The  term  de  bonis 
non  has  a  strict  and  limited  meaning,  and  being  strictly  inter- 
preted is  "of  the  goods  not  yet  administered."  At  common  law 
an  administrator  de  bonis  non  succeeds  to  the  rights  which  be- 
longed to  the  first  executor  or  administrator,  and  is  entitled  to  re- 
cover such  assets  of  the  estate  as  remain  unadministered  in 
specie,  and  such  of  the  debts  due  the  decedent  as  remain  unpaid. 

*^Pate  V.  Moore,  79  Ind.  20;  Vestal  Brockenborough  v.   Melton,  55   Tex. 

V.    Allen,   94    Ind.    268;    Croxton    v.  493. 

Renner,   103   Ind.   223,  2  N.   E.   601 ;         "  Langsdale    v.    Woollen,    99     Ind. 

Carver  v.  Lewis,   104  Ind.  438,  2  N.  575;   Langsdale  v.  Woollen,  120  Ind. 

E.  705.  78,  21  N.  E.  541. 

"Bean   v.    Chapman,    73   Ala.    140;         **  Byerly  v.   Donlin,   72   Mo.   270. 

^'Hinton  v.  Bland,  81  Va.  588. 


§    63  EXECUTORS    AND    ADMINISTRATORS.  85 

But  his  authority  does  not  extend  to  assets  already  adminis- 
tered.*' 

One  author  says :  "There  must  also  be  assets  remaining  to  be 
administered,  otherwise  there  is  no  necessity  for  the  supple- 
mentary appointment.  This  second  fact,  however,  need  not  be 
conclusively  established.  If  a  prima  facie  case  of  assets  is  made 
out,  it  is  sufficient  to  give  the  court  power  to  appoint  such  an 
administrator,  and  leave  it  to  the  common-law  courts  to  settle  the 
title  to  the  property.  A  claim  which  the  former  executor  was 
prosecuting  is  an  asset.  But  it  has  been  held  that  the  claim  that, 
if  a  certain  judgment  at  common  law  is  pronounced  fraudulent 
and  void  by  a  court  of  common  law,  certain  property  will  be- 
come assets,  is  not  enough  to  support  administration  with  the 
will  annexed,  because  the  probate  court  cannot  undertake  to  settle 
rights  of  property,  but  must  decide  on  a  prima  facie  right."*^ 

After  the  appointment  and  qualification  of  an  administrator 
de  bonis  non  he  is  entitled  to  all  the  assets  belonging  to  the  estate 
whether  they  remain  in  specie  or  have  been  misappropriated  or 
converted  by  the  former  administrator.  If  they  remain  in  specie 
the  title  to  them  vests  at  once  in  the  administrator  de  bonis  non 
and  he  may  recover  them  from  any  one  who  detains  them  wrong- 
fully. But  if  the  general  administrator  has  converted  or  mis- 
appropriated the  assets  of  the  estate  the  remedy  of  the  adminis- 
trator de  bonis  non  is  upon  the  bond  of  such  general  adminis- 
trator. 

The  assets  of  an  estate  remaining  unadministered  at  the  time 
of  the  appointment  were,  at  common  law,  all  the  estate  to  which 
the  authority  of  an  administrator  de  bonis  non  extended.  He 
was  entitled  to  all  the  goods  and  personal  estate,  which  remained 
in  specie,  and  were  not  administered  by  the  first  executor  or  ad- 
ministrator, as  well  as  to  all  debts  due  and  owing  to  the  testator 
or  intestate.*® 

An  executor  or  administrator  who  has  been  removed  from  his 
trust  may  be  compelled  by  his  successor,  the  administrator  de 

*^8   Ency    PI    &   Pr.   654;    Ormes'        *«Croswell  Extrs.  &  Admrs.  132. 
Estate  V.   Brown,  22   Ind.   App.   569,        "Bacon's    Abridg.    20;    Tingsey   v. 
52  N.  E.  1005.  Brown,  1  Bros.  &  Pull.  310. 


86  INDIANA    PROBATE   LAW.  §    64 

bonis  non,  to  pay  and  deliver  over  to  such  successor,  assets  of 
the  estate  remaining  in  his  hands. ^"^ 

Assets  omitted  from  a  former  administration  justify  the  ap- 
pointment of  an  administrator  de  bonis  non  and  for  such  pur- 
pose the  final  settlement  by  the  general  administrator  need  not 
be  set  aside,  and  such  final  settlement  continues  to  be  a  final  ad- 
judication as  to  all  matters  involved  in  it  except  such  unadmin- 
istered  assets.''^ 

§  64.  Same — Time  within  which  appointment  may  be 
made. — The  statute  does  not  limit  the  time  within  which  an 
administrator  de  bonis  non  may  be  appointed.  In  the  absence  of 
any  statute  of  limitation  upon  the  subject  the  general  rule  is  that 
as  long  as  there  are  assets  remaining  unadministered  such  an  ad- 
ministrator may  be  appointed ;  this  upon  the  theory  that  the  office 
does  not  end  until  all  outstanding  assets  of  the  estate  have  been 
administered  upon.^" 

One  author  saying  upon  this  subject,  "the  administration  de 
bonis  non  may  be  granted  after  any  length  of  time,  but  lapse  of 
time  and  other  circumstances  may  raise  a  presumption  that  all 
debts  against  an  estate  are  barred  or  paid,  and  that  the  remain- 
ing assets  belong  to  the  heirs,  in  which  case  the  administration 
cannot  be  reopened  by  the  appointment  of  an  administrator  de 
bonis  non.  If  nothing  remains  to  be  done  to  complete  an  admin- 
istration the  grant  of  letters  de  bonis  non  is  merely  nugatory."^' 

Nor  do  the  limitations  as  to  time  within  which  the  original 
letters  of  administration  must  be  taken  out  apply  to  this  species 
of  administration.^* 

§  65.  Same — Devastavit  of  former  administrator. — At 
common  law  there  was  no  remedy  against  the  representative  of 
a  deceased  executor  or  administrator  for  a  devastavit  committed 

""•  Kelly  V.  Weddle,  1  Ind.  550.  179 ;   Dodge   v.    Phelan,   2   Tex.    Civ. 

^  Michigan  Trust  Co.  v.  Probasco,  App.  441,  21  S.  W.  309. 

29  Ind.  App.  109,  63  N.  E.  255.  "Bancroft    v.    Andrews,    6    Cush. 

■^Taylor  V.  Thorn,  29  Ohio  St.  569;  (Mass.)    493;   Neal  v.    Charlton,   52 

Lafferty  v.   Shinn,  38  Ohio  St.  46.  Md.  495. 

"Woerner    Am.    Law    Admin.,    § 


6; 


EXECUTORS    AND    ADMINISTRATORS. 


87 


by  such  decedent  upon  the  principle  that  it  was  a  personal  tort 
and  died  with  the  person."^  For  this  reason  an  administrator 
de  bonis  non  could  not  call  the  representatives  of  the  previous 
deceased  administrator  of  his  intestate  to  account  for  any  prop- 
erty of  the  intestate,  that  such  predecessor  had  converted  or 
wasted.  He  could  only  recover  such  goods,  chattels,  and  credits 
of  his  intestate  as  remained  in  specie  and  were  capable  of  being 
clearly  identified  as  the  property  of  his  intestate. ^*^  The  two  ad- 
ministrations were  held  to  be  distinct,  each  being  vested  with 
peculiar  duties  and  responsibilities;  and  in  the  event  of  a  de- 
vastavit committed  by  either,  the  heirs,  creditors,  and  persons 
whose  legal  rights  were  affected  had  a  right  of  action  against  the 
defaulting  administrator,  but  no  such  right  existed  in  favor  of  an 
administrator  de  bonis  non.^' 

From  this  it  will  be  seen  that  if  an  administrator  de  bonis  non 
now  has  any  right  of  action  against  his  predecessor,  either  per- 


"Tucke's  Case,  3  Leon  241; 
Browne  v.  Collins,  2  Ventr.  292.  But 
this  rule  was  changed  by  statute  4 
and  5  W.  &  M.,  Ch.  24,  p.  812,  provid- 
ing that  the  executors  or  administra- 
tors of  any  executor  or  administra- 
tor, whether  rightful  or  of  his  own 
wrong,  who  shall  waste  or  convert 
to  his  own  use  the  estate  of  his  testa- 
tor or  intestate,  shall  be  liable  and 
chargeable  in  the  same  manner  as 
their  testator  or  intestate  would  have 
been,  if  they  had  been  living.  Cole- 
man v.  M'Murdo,  5  Rand.  (Va.)  51; 
Wheatley  v.  Lane,  1  Saund.  216. 

^'  3  Bacon  Abridg.  19,  20 ;  Hagthorp 
v.  Hook,  1  Gill  &  J.  (Md.)  270;  .An- 
thony V.  McCall,  3  Blackf.  (Ind.) 
86. 

"  In  Young  v.  Kimball,  8  Blackf. 
(Ind.)  167,  the  court  says:  "The 
main  question  arising  in  the  case  is 
whether  the  bill  will  lie?  It  charges 
a  devastavit,  a  conversion  of  the 
goods  of  the  intestate  to  the  use  of 


the  administrator.  If  the  commis- 
sion of  a  devastavit  by  an  administra- 
tor amounts  to  an  administration  of 
the  goods  of  the  intestate  to  the  ex- 
tent of  the  devastavit,  then  neither  a 
bill  in  chancery  nor  suit  at  law  can 
be  maintained  against  the  represen- 
tative of  such  administrator  by  the 
administrator  de  bonis  non  for  a  re- 
covery of  the  value  of  the  goods,  &c., 
included  in  the  devastavit,  for  the 
plain  reason  that  the  power  and  duty 
of  an  administrator  de  bonis  non,  by 
the  terms  of  his  commission,  extend 
only  to  the  unadministered  goods, 
&c.,  of  the  deceased.  That  a  de- 
vastavit does  constitute  such  an  ad- 
ministration as  places  the  goods 
(and  the  value  of  them),  converted 
or  wasted,  beyond  the  authority  of 
an  administrator  de  bonis  non,  seems 
settled  by  all  the  authorities;  though 
it  does  not  constitute  such  an  ad- 
ministration as  discharges  the  ad- 
ministrator, guilty  of  the  wrong,  from 


88 


INDIANA    PROBATE    LAW. 


§    65 


sonally  or  against  his  estate,  if  he  be  dead,  such  right  must  be 
found  in  some  statute,  for  it  did  not  exist  at  common  law.^* 

This  common-law  rule  has  not  been  changed  in  this  state. 
There  is,  however,  a  statute  by  force  of  which  an  administrator 
de  bonis  non  is  given  a  right  of  action  for  a  devastavit  of  his 
predecessor,  but  such  right  of  action  is  upon  the  bond  of  the 
former  executor  or  administrator.  The  statute  provides  that  any 
executor  or  administrator  may  be  sued  on  his  bond  by  any  sur- 
viving or  succeeding  executor  or  administrator,  co-executor  or 
co-administrator  of  the  same  estate,  and  specifying  the  various 
causes,  which  statute  will  be  considered  more  fully  in  another 
place.  °" 

Under  this  statute  an  action  will  lie  in  favor  of  an  administra- 
tor de  bonis  non  against  the  administrator  of  a  deceased  surety 
of  the  original  administrator. *'" 


liability  under  the  statute  to  those  in- 
terested." 

^^Ormes'  Estate  v.  Brown,  22  Ind. 
App.  569,  52  N.  E.  1005;  Lucas  v. 
Donaldson,  117  Ind.  139,  19  N.  E. 
758.  In  the  Ormes'  Estate  case  the 
court  said:  "As  the  only  right  of 
action  given  by  statute  to  an  admin- 
istrator de  bonis  non  for  a  conver- 
sion of  any  part  of  the  personal  as- 
sets of  the  estate  of  his  predecessor 
is  upon  his  official  bond,  and  as  an 
action  will  not  lie  in  his  favor  for  a 
tort  of  his  predecessor,  as  such  tort 
dies  with  him,  it  follows  that,  as  the 
complaint  proceeds  upon  the  latter 
theor}^,  it  was  wholly  insufficient." 

''  Burns'  R.  S.  1908,  §  2981 ;  Cullen 
V.  State,  28  Ind.  App.  335,  62  N.  E. 
759;  Sheeks  v.  State,  156  Ind.  508,  60 
N.  E.  142 ;  Myers  v.  State.  47  Ind.  293 ; 
Day  V.  Worland,  92  Ind.  75 ;  Graham 
V.  State,  7  Ind.  470,  65  Am.  Dec.  745; 
State  V.  Porter,  9  Ind.  342;  Ormes 
Estate  V.  Brown,  22  Ind.  App.  569, 
52  N.  E.  1005. 

"»  State  V.  Porter,  9  Ind.  342.     "The 


statute  means,  that  the  action  may  be 
brought  by  a  surviving  or  co-execu- 
tor or  co-administrator,  or  by  a  suc- 
ceeding administrator;  that  is,  one 
who  has  taken  the  place  of  or  suc- 
ceeded another — a  subsequent  one. 
The  provision  that  no  costs  shall  be 
taxed  against  the  estate,  'unless  it  is 
brought  by  such  surviving,  succeed- 
ing or  co-executor,  or  co-administra- 
tor,' if  the  construction  were  other- 
wise doubtful,  shows,  we  think,  that 
such  was  the  intention  of  the  legisla- 
ture. It  was  manifestly  the  intention 
to  include  an  administrator  de  bonis 
non."  Myers  v.  State,  ex  rel.,  47 
Ind.  293.  In  Barnett  v.  Vanmeter,  7 
Ind.  App.  45,  33  N.  E.  666,  it  is  said: 
"In  case  of  suit  by  him,  he  need  only 
aver  that  he  is  the  administrator, 
and  need  not  make  profert  of  his  let- 
ters, nor  can  his  right  to  sue  be  ques- 
tioned unless  the  defendant  files  a 
plea  under  oath  denying  such  right, 
and  such  a  pleading  is  in  abatement 
and  not  in  bar." 


§    66  EXECUTORS    AND    ADMINISTRATORS.  89 

And  where  an  administrator  de  bonis  non  has  obtained  a  judg- 
ment against  his  predecessor  and  the  sureties  on  his  bond  for 
assets  of  the  estate  converted  by  such  predecessor,  he  may,  with- 
out proceeding  to  collect  such  judgment  from  the  sureties,  main- 
tain an  action  to  set  aside  a  fraudulent  conveyance  of  his  real 
estate  made  by  such  former  administrator."  The  court  says: 
"As  the  debt  was  due  the  estate,  it  was  not  only  such  adminis- 
trator's right,  but  his  duty  to  take  measures  to  collect  it  by  en- 
forcing the  judgment.  It  is  plain,  therefore,  that  he  had  author- 
ity to  make  clear  his  way  to  property  subject  to  his  lien  by  remov- 
ing the  apparent  claims  of  fraudulent  grantees.  In  removing 
these  claims  he  simply  reduced  to  an  available  form  a  claim  that 
had  previously  been  adjudged  to  be  a  part  of  the  assets  of  the 
estate  represented  by  him."®^ 

§  66.  Same — Right  to  sue. — Where  a  note  has  been  made 
payable  to  an  executor  or  administrator  as  such,  it  will  be  pre- 
sumed that  such  note  was  given  for  a  debt  due  the  estate,  and 
an  administrator  de  bonis  non  may  maintain  suit  upon  such  note 
in  his  representative  capacity.**    And  in  such  action  by  an  admin- 

"  Duffy  V.    State,    115    Ind.   351,    17  in    specie.      Brownlee    v.    Lockwood, 

N.  E.  615.     Devastavit  is  a  violation  20  N.  J.  Eq.  239. 

of  duty  by  the  executor  or  adminis-  "^  Duffy  v.    State,    115   Ind.   351,    17 

trator  such  as  renders  him  personally  N.    E.    615;    Harvey    v.    State,    123 

liable   for  mischievous   consequences,  Ind.  260,  24  N.  E.  239. 

a  wasting  of   the  assets   a  misman-  "  Sheets     v.     Pabody,     6     Blackf. 

agement  of  the  estate  and  effects  of  (Ind.)    120,  38  Am.   Dec.   132.     The 

the  deceased  in  squandering  and  mis-  court,    in    this    case,    in    considering 

applying   the    assets    contrary    to    his  this     question,    says :       "Several    old 

duty.     Steel  v.  Holladay,  20  Ore.  70,  cases  may  be  found,  in  w^hich  it  w^as 

25  Pac.  69,  10  L.  R.  A.  670.     In  the  considered  that  the    contracts    made 

absence  of  a  statute  an  administrator  with    an    executor    or    administrator 

de  bonis   non  cannot  sue   his   prede-  were    personal    to    him,    and   that   he 

cessor,   either  directly  or  on  his  ad-  must  sue  for  them  in  his  own  right, 

ministration    bond    for    delinquencies  and  not   in  his   representative   capac- 

or  devastavit.     Beall  v.  New  Mexico,  ity.    *    *    *    However,    the    rule    may 

16  Wall.   (U.  S.)   535,  21  L.  ed.  292;  now  be  regarded  as  firmly  established 

Carter  v.  Trueman,  7  Pa.  315;  Rives  by  the  more  recent  cases,  that  wher- 

V.  Patty,  43  Miss.  338.    The  adminis-  ever  the  money  recovered  will  be  as- 

trator  de  bonis  non  is  only  entitled  to  sets,  the  executor  may  sue  for  it  and 

such  unadministered  assets  as  remain  declare    in    his    representative    char- 


90 


INDIANA    PROBATE   LAW,  §    66 


istrator  de  bonis  non,  the  complaint  should  state  the  name  of  the 
first  executor  or  administrator,  and  contain  an  averment  of  non- 
payment to  him;  also  of  non-payment  to  the  decedent,  as  well 
as  an  averment  of  non-payment  to  such  administrator  de  bonis 
non.*^*  An  administrator  de  bonis  non  alone  has  the  right  to  sue 
upon  a  note  belonging  to  the  estate,  and  made  payable  to  a  former 
executor  of  the  estate,  the  will  having  been  set  aside  and  the 
letters  testamentary  revoked. "'^  After  a  judgment  has  been  ren- 
dered ill  favor  of  an  administrator  de  bonis  non,  on  a  note  pay- 
able to  a  former  administrator  of  the  estate,  the  presumption  will 
be  that  the  note  belonged  to  the  estate.*"' 

A  debt  barred  by  the  statute  of  limitations  is  not  taken  out  of 
the  operation  of  the  statute  by  a  part  payment  to  one  who  is 
afterward  appointed  administrator  de  bonis  non  of  the  estate  to 
which  the  debt  was  owing.'^' 

In  an  action  begun  by  a  former  administrator  objections  to  the 
manner  of  the  appointment  of  the  administrator  de  bonis  non 
must  be  made  in  the  lower  court  or  they  will  not  be  noticed  in 
the  Supreme  Court. "^^ 

The  heirs  of  an  intestate  having  recovered  a  judgment  against 
the  administrator  and  heirs  of  a  former  administrator,  an  action 

acter."     It    is    further    said,    "that    if  pacity,  and  not  in  his  own  individual 

the  administrator  dies  intestate  with-  right." 

out  having  sued  upon  such  a  promise  "Vanblaricum    v.    Yeo,    2    Blackf. 

(that   is,   a  promise  to   himself  that  (Ind.)     322;     Griiifith    v.     Fischli,    4 

the  money  when  recovered  would  be  Blackf.    (Ind.)   427.     In  Cromwell  v. 

assets), — the   administrator   de   bonis  Barnes,  58  Ind.  20,  where  the  aver- 

non  may  sustain  an   action  upon  it;  ment  of  non-payment  was,  "that  the 

for  he  succeeds  to  all  the  legal  rights  residue  thereof,  with  interest,  is  due 

which  belonged  to  the  administrator  and   unpaid,"   the  court  said:      "The 

in    his    representative    capacity."      In  averment  of  non-payment  of  the  note. 

Leach  v.  Lewis,  38  Ind.  160,  it  is  said :  being  general,  was  broad  enough  to 

"The  note  being  payable  to  the  plain-  negative  payment  to  said  deceased." 

tiff  in  his  fiduciary  capacity,  it  is  to  ^  Leach     v.     Lewis,    38    Ind.    160; 

be  presumed,  in  the  absence  of   any  Cromwell  v.  Barnes,  58  Ind.  20. 

showing   to   the    contrary,     that    the  ''^  Williams  v.  Williams,  1  Ind.  450. 

money  was  to  be  due  him  in  that  ca-  "  Kisler  v.   Sanders,  40  Ind.  78. 

«'Mahon  v.   Mahon,  19  Ind.  324. 


§    67  EXECUTORS    AND    ADMINISTRATORS.  9 1 

to  enforce  such  judgment  cannot  be  maintained  by  an  adminis- 
trator de  bonis  non  of  the  original  intestate.*'^ 

If  an  administrator,  in  selHng  real  estate  of  his  intestate,  in- 
stead of  receiving  money  therefor  receives  credit  for  the  amount 
of  the  purchase-money  upon  his  individual  indebtedness  to  the 
purchaser,  it  is  no  payment  to  the  estate,  and  the  administrator 
de  bonis  non  may  sue  to  recover  the  money  or  set  aside  the  sale." 

§  67.  Same — Admissions. — Where  payment  for  property 
belonging  to  an  estate  has  been  made  to  a  former  administrator, 
his  admissions  are  proper  evidence  in  a  suit  by  the  administrator 
de  bonis  non  to  recover  the  value  of  the  property.  Such  admis- 
sions are  not  conclusive,  but,  like  admissions  made  by  parties  to 
an  action,  they  are  competent.  An  executor  or  administrator  is 
neither  an  agent  nor  an  officer  within  the  ordinary  acceptation 
of  those  temis.  He  may  be  said,  in  some  sense,  to  step  into  the 
shoes  of  the  deceased.  He  represents  the  deceased,  and  has  the 
care  and  management  of  his  personal  estate.  His  admissions  are 
competent  evidence  against  the  estate  in  actions  where  the  estate 
is  represented  by  the  executor  or  administrator  making  such  ad- 
missions. And  the  estate  is  equally  affected  by  the  admission, 
whether  the  subject-matter  of  it  arise  in  a  suit  where  the  same 

•*  Ferguson   v.    Sweeney,   6   Blackf.  nett  v.  Vanmeter,  7  Ind.  App.  45,  33 

(Ind.)   547.  ^'-   E.  666,   the  court  says:     "When 

'"Wallace  v.  Brown,  41  Ind.  436.  the  appointment  has  been  made,  the 
In  Chandler  v.  Schoonover,  14  Ind.  administrator,  as  we  have  seen,  oc- 
324,  the  court  says:  "As  a  general  cupies  the  same  position  that  a  gen- 
rule,  an  administrator,  upon  a  sale  eral  administrator  does.  After  the 
of  his  intestate's  property,  is  not  au-  appointment,  the  same  cannot  be  at- 
thorized  to  receive  in  payment  any-  tacked  in  a  collateral  proceeding,  and 
thing  other  than  money.  Evidently,  every  presumption  will  be  in  favor  of 
he  has  no  power  to  apply  the  proceeds  its  validity.  *  *  *  In  case  of  suit 
of  the  sale  of  the  intestate's  property  by  him,  he  need  only  aver  that  he  is 
in  discharge  of  his  own  individual  the  administrator,  and  need  not  make 
liabilities,  because  the  exercise  of  profert  of  his  letters,  nor  can  his 
such  a  power  would  be  inconsistent  right  to  sue  be  questioned  unless  the 
with  his  prescribed  duties  as  admin-  defendant  files  a  plea  under  oath  de- 
istrator,  and  would,  in  our  opinion,  nying  such  right,  and  such  a  pleading 
be    against   public   policy."     In   Bar-  is  in  abatement  and  not  in  bar. 


92  INDIANA    PROBATE    LAW.  §    68 

executor  or  administrator  is  a  party,  or  in  a  suit  where  a  suc- 
cessor in  the  administration  is  a  party.^^ 

§  68.  Same — Appointment  after  final  settlement. — Prior 
to  1891  no  administration  de  bonis  non  could  be  granted  upon  an 
estate  which  had  been  finally  settled  under  a  previous  adminis- 
tration. The  rule  being  that  so  long  as  the  final  settlement  re- 
mains unrevoked,  it  is  in  relation  to  all  matters  pertaining  to  the 
ordinary  settlement  of  the  estate  res  adjudicata,  and  letters  of 
administration  de  bonis  non  cannot  be  issued  upon  such  estate, 
nor  any  further  administration  thereof  permitted.'^" 

But  this  rule  has  been  changed  by  statute  and  while  the  final 
settlement  made  in  a  prior  administration  still  remains  res  ad- 
judicata as  to  all  matters  property  involved  therein,  the  statute 
now  enables  parties  interested  to  have  the  estate  opened  up  as  to 
omitted  and  unadministered  assets  and  in  effect  provides  that  as 
to  any  assets  not  formerly  administered  the  settlement  shall  not 
be  final.  The  statute  reads  as  follows :  "Whenever  hereafter 
it  shall  be  shown  to  the  satisfaction  of  any  court  of  probate 
jurisdiction  of  this  state  that  the  administrator  or  executor  of 
the  estate  of  any  decedent  has  been  finally  discharged  and  that 
there  is  no  administration  of  said  estate  pending  in  any  court 
of  this  state,  and  that  there  are  assets  belonging  to  the  estate  of 
said  decedent  within  the  jurisdiction  of  said  state  that  have  not 
been  and  should  be  administered,  then  upon  application  of  any 
creditor  or  legatee  whose  debt  or  legacy,  in  whole  or  in  part,  re- 

"  Eckert  v.  Triplett,  48  Ind.  174,  17  the  estate  is  represented  by  his  suc- 

Am.  Rep.  735 ;  Slade  v.  Leonard,  75  cesser   in   the   administration.    *   *    * 

Ind.    171 ;    Clouser   v.    Ruckman,    104  The  direct  authorities  upon  this  point 

Ind.  588,  4  N.  E.  202.     The  court  in  are   not   numerous.     Indeed,  we   are 

Eckert   v.    Triplett,   48   Ind.    174,    17  aware    of    only    one    American    case 

Am.  Rep.  735,  said :    "When  an  exec-  exactly  in  point.    That  is  the  case  of 

utor  or  administrator  makes   an  ad-  Lashlee  v.  Jacobs,  9  Humph.  (Tenn.) 

mission    which    would   be   competent  718." 

evidence  against  the  estate  in  an  ac-  "^  Pate  v.  Moore,  79  Ind.  20 ;  Crox- 

tion  where  the  estate  is   represented  ton  v.  Renner,  103  Ind.  223,  2  N.  E. 

by  the  same  executor  or  administra-  601 ;    Barnett    v.    Vanmeter,    7    Ind. 

tor,   we   see  no    satisfactory    reason  App.  45,  33  N.  E.  666. 
why  it  should  not  be  competent  when 


§    68  EXECUTORS   AND   ADMINISTRATORS.  93 

mains  unpaid,  or  of  any  person  entitled  to  share  in  the  distribu- 
tion of  said  estate,  such  court  may  appoint  an  administrator  de 
bonis  non  of  said  estate,  who  shall  be  required  to  file  bonds, 
inventories  and  reports,  and  have  the  same  powers  now  given 
to  administrators  and  executors  by  law,  and  be  governed  m  all 
things  by  the  laws  now  in  force  or  that  may  hereafter  be  enacted 
for  the  settlement  of  decedents'  estates."" 

It  was  intended  by  this  statute  to  reach,  for  the  benefit  of 
creditors  legatees  or  distributees  any  assets  which  had  escaped 
the  former  administration.  Under  it  a  creditor,  heir  or  legatee, 
upon  a  proper  showing,  and  without  any  attempt  to  first  open 
the  final  settlement,  may  have  the  court  appoint  an  administrator 
de  bonis  non  for  the  purpose  of  collecting  such  unadmmistered 
assets  and  applying  them  to  the  payment  of  debts  or  legacies,  or 
distributing  them  to  the  proper  persons.  Such  administrator  de 
bonis  non  after  his  appointment  proceeds  in  all  respects  as  other 
administrators  in  the  settlement  of  the  estate.*"' 

\n  administrator  appointed  under  this  statute  is  given  the 
same  power  and  charged  with  the  same  duties  as  a  general  ad- 
ministrator. Such  appointment  cannot  be  attacked  collaterally 
and  everv  presumption  is  in  favor  of  its  validity.'" 

This  statute  does  not  dispense  with  the  provisions  of  §  2925, 
Burns'  R.  S.  1908,  relating  to  the  setting  aside  of  final  settlements, 
and  within  the  time  given  by  that  section,  such  settlement  may  be 
opened  and  the  remaining  assets  administered  either  by  the  orig- 
inal administrator  or  an  administrator  de  bonis  non  independ- 
entlv  of  the  above  statute.  The  remedy  afforded  by  this  last 
statute  is  purely  cumulative;  and  it  apphes  as  well  to  estates  m 
which  final  settlements  were  made  before  the  passage  of  the  act 
as  after.    In  this  far  it  may  be  said  to  be  retroactive  m  its  effect. 

"  Burns'  R.  S.  1908,  §  2757.  v-  Vincennes,  34  Ind.  App.  667,  72  N. 

^*  Barnett  V.  Vanmeter,  7  Ind.  App.     E.  166. 

^  Probasco,  29  Ind.  App.  109,  63  N.    45,  ^l^\f^'^^   3,  j,,  E.  533.   Ac. 

"Mich    Trust  Co    V    Probasco,  29    March  Sth,  1891,  providing  that  on  a 
Ind    App.  W   63  N-.  E.255;  Cu'llop     showing    that    an    adnnn.s.ra.or    has 


94  INDIANA    PROBATE   LAW.  §    69 

What  was  lawfully  done  in  the  settlement  of  the  estate  by  the 
former  administrator  is  binding  upon  the  administrator  de  bonis 
non,  but  not  that  which  was  done  unlawfully." 

Where  a  claim  due  an  estate  never  came  to  the  knowledge  or 
possession  of  an  administrator  and  the  estate  was  finally  settled 
without  administering  on  such  claim,  an  unpaid  creditor  of  such 
estate  can  only  reach  such  claim  to  make  it  assets  for  the  payment 
of  his  debt,  through  an  administrator  de  bonis  don.'® 

§  69.  Executor  de  son  tort.— One,  who  being  neither  ex- 
ecutor nor  administrator,  yet  takes  it  upon  himself  to  intermeddle 
with  the  goods  of  the  deceased,  or  do  some  act  characteristic  of 
the  office  of  executor,  thereby  makes  himself  what  is  called  in 
law  an  executor  of  his  own  wrong;  an  executor  de  son  tort.''' 
He  is  so  called  because  the  "most  obvious  conclusion  which 
strangers  can  form  from  his  conduct  is  that  he  hath  a  will  of  the 
deceased,  wherein  he  is  named  executor,  but  hath  not  yet  taken 
probate  thereof."^^^ 

It  has  been  held  that  the  following  acts  will  constitute  one  an 
executor  de  son  tort :  taking  a  bible ;  a  bedstead ;  killing  cattle 
of  the  deceased;  using,  selling,  or  giving  away  goods  of  the  de- 
ceased; taking  such  goods  to  satisfy  one's  own  debt  or  legacy; 
demanding  debts  of  the  decedent;  making  acquittances  therefor, 
or  receiving  the  same;  selling  the  goods  of  the  deceased  after  his 
death  by  directions  given  before  his  death.''    The  policy  of  the 

been  finally  discharged,  that  no  ad-  made  and  approved,  before  the  pass- 
ministration  is  pending,  and  that  age  of  the  act.  Wahl  v.  Schierling, 
there  are  assets  within  the  jurisdic-  11  Ind.  App.  696,  39  N.  E.  533. 
tion  of  the  state  which  have  not  been,  "Martin  v.  Ellerbe,  70  Ala.  326;, 
but  should  be,  administered,  a  court  Weeks  v.  Love,  19  Ala.  25;  Fay  v. 
of  probate  having  jurisdiction  may,  Muzzey.  13  Gray  (Mass.)  53,  74  Am. 
on    the    application    of    any    unpaid  Dec.  619. 

creditor  or  legatee,  or  of  any  one  en-  ''  Postal    v.    Kreps,    23    Ind.    App, 

titled  to  share  in  the  estate,  appoint  101,  54  N.  E.  816. 

an   administrator   de   bonis   non   with  '"  Williams  Extrs.,  §  257. 

the  powers  of  an  administrator,   ap-  ^"2  B.  L.  Com.  507. 

plies    to    estates    administered    upon,  "  Williams'  Extrs.  225. 
and  in  which  final  reports  had  been 


§    70  EXECUTORS    AND    ADMINISTRATORS.  95 

law  has  been  to  prevent  all  improper  interference  with  the  prop- 
erty of  a  decedent.  There  is  usually  some  delay  before  a  regular 
executor  or  administrator  can  be  appointed  and  clothed  with 
power  to  act,  and  it  is  during  this  time  that  acts  of  unwarrant- 
able intermeddling  generally  take  place.^" 

§  70.  Same — The  statute. — While  our  courts  use  freely 
the  term  executor  de  son  tort,  such  an  expression  is  unknown 
to  our  statutes.  Such  persons  are  called  intermeddlers,  the 
statute  as  to  them  providing:  Every  person  who  shall  unlaw- 
fully intermeddle  with  any  of  the  property  of  a  decedent  shall  be 
liable  therefor  in  any  court  of  competent  jurisdiction.  Such 
action  may  be  brought  by  the  executor  of  the  decedent  or  the 
administrator  of  his  estate,  or,  if  there  be  none  such,  then  by  any 
creditor  or  heir  of  the  decedent,  and  shall  be  for  the  use  of  the 
estate  of  the  decedent.  The  defendant  in  such  action  may  be 
examined,  under  oath,  touching  such  alleged  intermeddling,  and 
testimony  thus  elicited  shall  not  be  used  against  him  in  any 
prosecution.  The  defendant  shall  be  liable  in  such  action  to  a 
judgment  for  the  full  value  of  the  property  converted,  or  to  the 
extent  of  the  injury  to  said  estate  occasioned  by  such  intermed- 
ling  and  ten  per  cent,  damages  in  addition  thereto.  Execution 
on  such  judgment  shall  not  be  subject  to  stay  of  replevin  bail, 
and  shall  be  without  relief  from  valuation  or  appraisement  laws, 
and  returnable  in  ninety  days.  The  court  may  adjudge  a  return 
to  the  executor  or  administrator  (or,  if  there  be  none,  to  such 
person  for  the  time  being  as  the  court  may  appoint)  of  any  goods 
or  choses  in  action  remaining  in  the  control  of  the  defendant, 

"  Leach  v.  Prebster,  35  Ind.  415.  A  characteristics  of  a  regular  execu- 
void  administration  fraudulently  pro-  torship.  The  writers  of  the  ecclesi- 
cured  may  render  the  administrator  astical  courts  define  an  executor  de 
liable,  a'  person  acting  under  void  son  tort  as  one  who  takes  upon  him- 
letters  may  be  treated  as  an  executor  self  an  office  of  executor  by  intru- 
de son  tort.  Bradley  v.  Common-  sion,  not  being  so  constituted  by  the 
wealth,  31  Pa.  St.  522;  Williams  deceased,  nor  for  want  of  such  con- 
V.  Kiernan,  25  Hun  (N.  Y.)  355;  Da-  stitution  substituted  by  the  ecclesias- 
mouth  V.  Klock,  29  Mich.  290.  This  tical  court  to  administer.  Croswell 
species  of  executorship,  although  ille-  Extrs.  &  Admrs.,  137. 
gal  in  its  inception,  has  some  of  the 


96  INDIANA    PROBATE   LAW.  §    7 1 

and  may  enforce  compliance  with  any  judgment  in  the  premises 
by  attachment  and  imprisonment,  in  the  discretion  of  the  court. 
If  no  administration  of  the  estate  is  pending,  the  court  shall  pro- 
vide for  the  safe  keeping  of  the  assets  or  damages  recovered 
until  an  executor  or  administrator,  as  the  case  may  be,  shall  be 
duly  appointed.  Any  creditor  or  heir  recovering  judgment  as 
aforesaid  shall  be  allowed  a  reasonable  compensation  therefor 
out  of  the  assets  of  said  estate  by  the  court  in  which  the  estate 
is  administered.*^ 

Such  intermeddling  must  be  with  the  property  of  the  decedent, 
and  if  the  intermeddler  sets  up  a  bona  fide  claim  of  ownership 
to  the  property,  it  is  doubtful  whether  such  question  of  title  could 
be  tried  in  the  action  above  provided.^* 

Although  a  very  slight  degree  of  intermeddling  will  make  a 
person  liable  as  executor  de  son  tort,^"'  yet  there  are  many  acts, 
which  may  be  done  by  one  in  charity  and  kindness,  which  will 
not  incur  for  him  any  liability,  such  as  caring  for  and  preserving 
the  property  of  the  estate  from  loss  or  damage,  feeding  the  stock, 
providing  necessaries  for  the  family,  etc.  The  intermeddling 
contemplated  by  the  statute  must  be  an  illegal  one.*°  The  widow 
of  a  decedent  dying  testate,  who  is  constituted  sole  legatee  under 
the  will,  not  having  probated  the  will,  will  be  held  to  be  an  exec- 
utor de  son  tort  for  taking  possession  of  the  property  of  the 
estate.®^ 

§71.  Same — Statute  construed. — Under  the  law  of  this 
state  the  creditor  of  a  decedent  can  collect  his  claim  against  the 

"  Burns'  R.  S.  1908,  §  2775 ;  Tippe-  39,  23  Am.  Dec.  373,  it  was  held  that 

canoe  &c.  Trust  Co.  v.  Carr,  40  Ind.  where   a  husband   left  his   wife,   and 

App.  125,  78  N.  E.   1043 ;  McAfee  v.  within    a    year    after    his    departure, 

Montgomery,  21  Ind.  App.  196,  51  N.  and     before     she     had     any     certain 

E.  957.  knowledge    of    his    death,    she    used 

**  Gibson    v.    Cook,    62    Md.    256;  the  property  left  by  him   in  support 

Clark  V.   Shelton,  16  Ark.  474;  Eans  of  the  family  and  in  the  payment  of 

V.  Eans,  79  Mo.  53.  his  debts,  that  she  was  not  liable  as 

*^  Leach  v.  Prebster,  35  Ind.  415.  an  executor  de  son  tort  to  the  cred- 

**  Brown   v.    Sullivan,   22   Ind.    359,  itors    of    the    husband,    although    the 

85  Am.  Dec.  421n.  debts    of    the    husband    exceeded    the 

*^  McCoy  V.  Payne,  68  Ind.  327.    In  value  of  his  property. 
Brown   v.    Benight,  3   Blackf.    (Ind.) 


§    71  EXECUTORS   AND   ADMINISTRATORS.  97 

decedent's  estate  by  and  through  an  administration  of  such  estate, 
and  in  no  other  way  or  manner,  where  his  claim  is  not  secured 
by  a  mortgage  or  a  specific  Hen  on  some  particular  property ;  and 
without  such  administration  he  can  not  recover  his  claim  from 
the  widow,  heirs,  devisees  or  legatees,  nor  even  from  an  executor 
de  son  tort.^^  An  action  may  be  brought  against  an  executor  de 
son  tort  by  an  administrator,  executor  or  creditor  of  the  estate, 
and  when  the  suit  is  by  a  creditor  he  must  sue,  not  only  for  him- 
self, but  for  all  the  other  creditors  of  the  decedent. ^^ 

Properly  construed,  this  section  of  the  statute  does  not  au- 
thorize the  creditor  of  a  decedent  to  maintain  a  personal  action 
or  recover  a  personal  judgment,  against  an  executor  de  son  tort 
of  such  decedent's  estate.  The  liability  of  such  an  executor  is 
not  to  the  decedent's  creditor,  but  to  the  decedent's  estate  and 
his  personal  representatives;  and  although  a  creditor  may  sue 
such  an  executor,  he  cannot  recover  a  personal  judgment  for  his 
debt,  but  can  only  compel  such  executor  to  account  to  the  de- 
cedent's estate  for  the  full  value  of  such  decedent's  property  with 
which  he  has  unlawfully  intermeddled,  with  ten  per  cent,  added 
thereto  as  damages."''    If  any  one  has,  without  an  administration, 


**  North     Western     Conference     v.  this    state   by   an    action    at   law    and 

Myers,  36  Ind.   375;   Wilson   v.   Da-  sought  to  charge  her  as  an  executor 

vis,    Zl    Ind.    141;    Goff    v.    Cook,    IZ  de   son   tort.     The   court,   in   passing 

Ind.   351;    Leonard  v.    Blair,   59   Ind.  upon  the  question,  said:    "Supposing, 

510;    Allen    v.    Vestal,   60    Ind.   245;  as  the  plaintiff  contends,  the  widow 

Langford    v.    Freeman,    60    Ind.    46;  to  have   had  possession   of   some  of 

McCoy  V.  Payne,  68  Ind.  327.  the  goods  of  the  estate,  that  circum- 

"  Wilson    V.    Davis,    Zl    Ind.    141 ;  stance  alone  would  not  make  her  lia- 

Goff  V.  Cook,  IZ  Ind.  351;  Ferguson  ble  to  this  suit,  whether  she  be  con- 

V.  Barnes,  58  Ind.  169.  sidered   as   holding   the   goods  under 

'"McCoy    V.    Payne,    68    Ind.    327;  the  will,  or  as  being  an  executrix  de 

Goflf  V.  Cook,  IZ  Ind.  351;  Ramsey  v.  son  tort.    The  assets  in  her  hands,  if 

Flannagan,  ZZ  Ind.  305.     In  Chandler  she  had  any,  might  probably  be  fol- 

V.    Davidson,    6    Blackf.    (Ind.)    367,  lowed   by   the   plaintiff   in   chancery; 

the  facts  were  that  a  widow  removed  but  his  remedy  at  law,  independently 

from    another    state    into    this    state,  of    the    express    promise,    would    be 

bringing  with  her  some  of  the  goods  against  her  here  as  an  executrix,  or 

left  by  her  deceased  husband,  and  a  against    the    administrator    in    Caro- 

creditor  of  the  husband  sued  her  in  lina." 


7 — Pro.  Law. 


98  INDIANA    PROBATE    LAW.  §    ']2 

even  though  he  be  a  legatee  under  a  will,  taken  possession  of  any 
of  the  property  of  a  decedent,  he  may  be  sued  as  an  executor 
de  son  tort  by  any  unpaid  creditor."^ 

In  the  absence  of  debts  the  estate  of  a  decedent  descends  to  his 
heirs  and  they  are  entitled  to  its  possession ;  and  as  has  been  here- 
tofore shown""  if  the  heirs  can  agree  upon  a  distribution  there 
is  no  necessity  for  an  administration,  and  choses  in  action  be- 
longing to  such  estate  may  be  collected  by  the  heirs  entitled 
thereto,  and  they  will  not  be  considered  as  intermeddlers.'"'" 

While  an  executor  or  administrator  may  maintain  an  action 
against  an  executor  de  son  tort  of  his  decedent,  the  heirs  at  law, 
or  next  of  kin,  of  such  decedent  cannot,  simply  as  such,  maintain 
the  action;  they  must  show  that  there  are  no  debts  and  no  need 
of  administration"*  in  such  case,  otherwise  they  should  procure 
the  appointment  of  an  administrator,  and  have  a  suit  instituted 
in  his  name."^ 

In  whatsoever  name  such  suit  is  brought,  the  parties  thereto 
are  incompetent  as  witnesses  to  testify  to  any  matters  occurring 
in  the  lifetime  of  the  deceased."'^ 

§  72.  Same — Statute  construed. — Intermeddling  with  the 
assets  of  the  estate  prior  to  the  appointment  of  an  executor  or 
administrator  does  not  disqualify  such  intermeddler  for  appoint- 
ment, for  it  has  been  held  that  one  who  has  intermeddled  may  be 
appointed  administrator,  and  such  fact  need  not  weigh  against 
such  appointment.®^ 

"^  Wilson  V.   Davis,  Zl  Ind.   141.  from  them  is  one  of  law.     Padget  v. 

'-See  §  24.  Priest,  2  T.  R.  97;  Williams   Extrs. 

"'Martin  v.  Reed,  30  Ind.  218.  265. 

"  Ferguson  v.  Barnes,  58  Ind.  169.  "^  Bingham    v.    Crenshaw,    34    Ala. 

*^Babcock  v.  Booth,  2  Hill  (N.  Y.)  683.     Acts    even   technically   tortious 

181,  38  Am.  Dec.  578n.  may  be  ratified  by  a  subsequent  grant 

'^ Larch  v.  Goodacre,  126  Ind.  224,  of  letters:    Curtis  v.  Vernon,  3  T.  R. 

26  N.   E.  49.     The  question  whether  587;    Hatch    v.    Proctor,    102    Mass. 

or  not   one   is   liable  as   executor   de  351 ;  Clements  v.  Swain,  2  N.  H.  475. 

son  tort  is  one  of  fact  to  be  left  to  To  an  action  on  a  judgment  against 

the  jury,  and  not  a  mere  question  of  an  executor  de  son  tort,  such  person 

law.    The  facts,  however,  once  estab-  may    show    his    subsequent    appoint- 

lished,  the  conclusion  to  be   deduced  ment   as   administrator   and   a    settle- 


S    "^2  EXECUTORS    AND    ADMINISTRATORS.  99 

An  administrator  sued,  charging  the  defendant  with  convert- 
ing to  his  own  use  five  hundred  dollars  of  money,  left  by  the 
decedent.  The  defendant  answered  that  he  had  loaned  the  iden- 
tical money  to  the  decedent,  who  had  it  on  hand  at  the  time  of 
his  death,  and  that  his  widow,  at  that  time,  took  possession  of 
the  money,  and  representing  to  the  defendant  that  she  intended  to 
take  out  letters  of  administration,  requested  the  defendant  to  take 
back  the  money  and  deliver  to  her  the  note  the  decedent  had 
given  therefor.  This  the  defendant  did.  Held,  that  the  answer 
was  insufficient,  and  that  both  the  widow  and  the  defendant  were 
executors  de  son  tort.''"* 

Where  one,  who  has  indorsed  a  note  of  the  decedent,  has  prop- 
erty of  the  estate  in  his  hands,  which  he  sells,  applying  the  pro- 
ceeds to  the  payment  of  the  note,  he  will  be  held  liable  therefor 
as  executor  de  son  tort.'^"  Under  an  earlier  statute  an  action 
would  lie  against  an  executor  de  son  tort,  either  at  law  or  equity.^ 

In  an  action  against  one  charged  as  an  executor  de  son  tort, 
a  creditor  can  only  show  damage,  by  showing  that  the  property 
intermeddled  with  was  such  as  an  administrator  would  be  entitled 
to  the  possession  and  control  of." 

ment  of  the  estate  as  insolvent.    01m-  ute  provides  that  an  executor  de  son 

sted  V.  Clark,  30  Conn.  108;  Schouler  tort  shall  be  liable  to  the  'extent  of 

Extrs.  &  Admrs.,  §  195.    But  he  can-  the  damages'  caused  by  his  unlawful 

not  set  up  his  own  wrong  to  defeat  intermeddling.     This  is  the  measure 

the    judgment.      Walker    v.    May,    2  of    the    liability,    for,    as    the    statute 

Hill  Ch.  (S.  Car.)  22.  specifically    provides  .  a    remedy,    and 

For  acts  performed  before  his  ap-  marks  out  the  limits  of  the  liability, 

pointment,  for  which  but  for  his  ap-  there    is    no    other    remedy,    and   no 

pointment  he  would  be  liable  as  ex-  other   liability,    than   that   created  by 

ecutor  de  son  tort,  the  administrator  the  statute.     The  person  who  brings 

is   chargeable   only   in   that   capacity,  the     action     must,     therefore,     show 

^IcClure  V.  People,  19  111.  App.  105.  some  damage,  for,  under  this  statute, 

"*  Robinson    v.    Isenhower,    47   Ind.  there  is  no  liability  beyond  the  extent 

199.  of  the  damage  resulting  from  inter- 

*"  Ramsey    v.    Flannagan,    Zl    Ind.  meddling.    A  creditor  can  only  show 

305.  damage  by  showing  that  the  property 

'Thorn  v.  Tyler,  3  Blackf.    (Ind.)  intermeddled   with    was    such    as    an 

504.  administrator    would    be    entitled    to 

*  In   the  case  of   Goflf  v.   Cook,  IZ  take  possession  and  control  of." 
Ind  351,  the  court  says :    "The  stat- 


lOO  INDIANA    PROBATE    LAW.  §    JT^ 

A  complaint  by  an  administrator  against  one  for  a  wrongful 
conversion  of  the  intestate's  property  is  good,  whether  the  con- 
version occurred  before  or  after  the  granting  of  letters  of  admin- 
istration.^ 

§  73.  Same — Intermeddler's  rights. — A  person  sued  as  an 
executor  de  son  tort  to  recover  the  value  of  assets  of  the  estate 
which  he  had  converted  to  his  own  use,  or  otherwise  disposed  of, 
is  entitled  to  be  allowed,  in  reduction  of  damages,  the  amount 
of  such  assets  applied  by  him  to  the  proper  uses  of  the  estate  in 
the  payment  of  debts  or  otherwise,  provided  the  assets  are  suffi- 
cient to  pay  all  the  debts  in  full ;  i  f  not  he  shall  be  credited  only 
in  the  proportion  the  entire  amount  of  the  assets  bears  to  the 
total  amount  of  the  indebtedness.*  Such  actions  may  be  brought 
against  an  executor  de  son  tort  by  the  regularly  appointed  exe- 
ecutor  or  administrator,  or  by  a  creditor  of  the  decedent,  and 
the  defendant  in  the  action  may,  under  the  general  denial,  give 
evidence  generally  to  disprove  the  plaintiff's  right  to  recover.^ 

If  the  one  who  intermeddles  afterward  takes  out  letters  of  ad- 
ministration, he  thereby  cures  the  tortious  acts,  and  is  liable  only 
as  an  ordinary  administrator,  and  if  he  has  received  payments 
of  money,  and  given  receipts  therefor,  he  is  liable  in  his  accounts 
as  administrator  for  the  money,  and  the  person  to  whom  he  gave 
the  receipt  is  protected  by  it  from  suit  by  the  administrator ;  and 
if  he  sells  goods  of  the  estate  while  he  is  such  executor  de  son 
tort,  ai)d  afterward  is  regularly  appointed  administrator,  he  may 
ratify  the  sale,  and  sue  the  vendee  for  the  price.'' 

^  Gerard  v.  Jones,  78  Ind.  378.  In  ful  intermeddling,  the  creditor  can- 
such  a  suit,  a  plea  of  payment  is  not  not  recover  an  ordinary  personal 
a  proper  answer.  In  a  suit  by  the  judgment,  but  the  judgment  for  the 
administrator  of  a  decedent's  estate  plaintiff  should  require  the  intermed- 
against  an  executor  de  son  tort  of  dler  to  account  to  the  court  of  pro- 
the  same  estate,  an  answer  in  abate-  bate  jurisdiction.  Goff  v.  Cook,  IZ 
ment,  to  the  effect  that  the  adminis-  Ind.  351. 

trator    had    been    appointed    by    the  *  Price  v.  Boyce,  10  Ind.  App.  145, 

clerk,   and   his   appointment  had   not  36  N.  E.  766. 

been   confirmed   by  the   court  at  the  '^  Reagan    v.    Long,    21    Ind.    264; 

commencement  of  the   suit,  was  bad  Leach  v.  Prebster,  35  Ind.  415. 

on    demurrer.      Collier   v.    Jones,    86  *  Croswell  Extrs.  &  Admrs.   140. 
Ind.  342.     In  such  a  suit  for  wrong- 


§    74  EXECUTORS    AND    ADMINISTRATORS.  IQI 

§  74.  Same — Right  of  widow. — A  widow  is  not  liable  as  an 
intermeddler  who,  in  ignorance  of  the  death  of  her  husband, 
uses  his  property  in  support  of  herself  and  his  children."^  But 
if  with  knowledge  of  her  husband's  death  a  widow  retains  his 
property  in  her  possession,  using  and  treating  it  as  her  own,  she 
will  be  liable  as  an  executor  of  her  own  wrong".'* 

The  fact  that  the  widow  remains  in  possession  of  part  of  the 
personal  property  of  her  husband,  after  his  death,  does  not  make 
her  an  executor  de  son  tort.  This  act  alone  would  not  make  her 
liable." 

Where  one,  at  the  request  of  the  widow,  who  takes  a  life 
estate,  under  the  will,  in  all  of  her  deceased  husband's  property, 
sells  such  property,  or  portions  thereof,  and  applies  the  proceeds 
to  the  payment  of  the  debts  of  the  decedent,  and  in  purchasing 
supplies  for  the  widow,  such  person,  together  with  the  widow, 
will  be  liable  as  executor  de  son  tort.^" 

In  one  case  it  was  held  that  where  the  estate  of  a  decedent  did 
not  exceed  the  amount  allowed  to  a  widow  absolutely  by  statute, 
that  such  widow,  nor  her  vendee,  could  not  be  held  liable  to  cred- 
itors as  executors  de  son  tort  for  the  taking  and  conversion  of 
such  property. ^^ 

§  75.  Joint  executors  and  administrators. — There  may  be 
more  than  one  representative  of  a  decedent's  estate  appointed 
either  by  the  will  or  by  the  court,  thus  giving  rise  to  joint  ad- 
ministrations. From  the  fact,  however,  that  one  co-executor  or 
one  co-administrator  possesses  the  power  of  all  if  he  chooses  to 
exercise  it,  such  administrations  are  apt  to  result  in  divided 
counsel  or  in  the  strongest  practically  controlling  the  affairs  of  the 
estate.  For  many  reasons  a  joint  administration  of  an  estate  is 
not  to  be  commended. 

Joint  executors  are  those  who  are  joined  in  the  execution  of 

'  Brown     v.     Benight,     3  Blackf.        '  Chandler   v.    Davidson,    6   Blackf. 
(Ind.)  39,  23  Am.  Dec.  2,72,.  (Ind.)  367. 

*  Hawkins    v.    Johnson,    4  Blackf.         '"Leach  v.  Prebster,  35  Ind.  415. 
(Ind.)  21.  "Kahn  v.  Tinder,  77  Ind.  147. 


102  INDIANA    PROBATE    LAW.  §    75 

a  will.     In  law,  however  numerous  joint  executors  may  be,  they 
constitute  but  one  person. ^- 

Formerly  a  distinction  seems  to  have  been  made  between  joint 
executors  and  joint  administrators.^''  But  now,  in  respect  to 
their  rights,  duties  and  liabilities,  co-administrators  stand  upon 
the  same  footing  as  co-executors,  with  this  difference:  that  their 
powers  and  duties,  being  defined  by  positive  law,  are  not  capable 
of  any  special  variation,  as  may  be  those  of  executors.^" 

The  trust  reposed  in  two  or  more  executors  or  administrators 
is  in  its  nature  joint  and  several,  their  rights  are  equal,  their 
duties  divisible,  they  are  authorized  to  act  each  separately  or 
in  conjunction,  and  they  are  jointly  responsible  for  joint  acts, 
and  each  is  solely  responsible  for  his  own  acts  and  defaults  in 
which  the  others  do  not  participate ;  and  where  one  acts  alone  and 
misapplies  property  of  the  estate,  or  otherwise  fails  in  any  duty, 
he  alone  is  responsible,  and  his  co-executors  or  co-administrators 
are  not  liable  therefor.^'" 

Joint  executors  or  joint  administrators  may  act  independently, 
the  act  of  any  one,  within  the  scope  of  his  authority,  being  con- 
sidered the  act  of  all.  As  is  said:  "If  a  man  appoint  several 
executors,  they  are  esteemed  in  law  but  as  one  person,  represent- 
ing the  testator,  and  therefore  the  acts  done  by  any  one  of  them 
which  relate  either  to  the  delivery,  gift,  sale,  payment,  possession 
or  release  of  the  testator's  goods,  are  deemed  the  acts  of  all,  for 
they  have  a  joint  and  entire  authority  over  the  whole."^" 

One  executor  cannot  prevent  a  co-executor  from  taking  pos- 
session of  the  assets  of  the  estate,  nor  can  he  take  such  assets 
from  him  after  he  has  taken  possession.^^ 

Nor  is  a  joint  executor  or  administrator  bound  to  see  to  the 
application  of  the  assets  received  by  his  co-executor  or  co-admin- 

'-'  Schouler  Extrs.  &  Admrs.,  §  400 ;        '"  Bacon's  Abridg.,  p.  37 ;  Herald  v. 

Bouvier   Law    Diet;   Ames   v.   Arm-  Harper,  8  Blackf.    (Ind.)    170;   Long 

strong,  106  Mass.  15;  Barry  v.  Lam-  v.    Rodman,    58    Ind.    58;     Schouler 

bert,  98  N.  Y.  300,  50  Am.  Rep.  677.  Extrs.  &  Admrs.,  §  400. 

"  Hudson  V.  Hudson,  1  Atk.  460.  ''  Hall  v.  Carter,  8  Ga.  388 ;  Wood 

"  Schouler  Extrs.  &  Admrs.,  §  404.  v.  Brown,  34  N.  Y.  337. 

''Kirby  v.  Turner,  Hopk.   Ch.    (N. 
Y.)  309. 


§    --  EXECUTORS    AND    ADMINISTRATORS.  IO3 

istrator;  and  if  one  such  joint  officer  has  fully  and  properly  ad- 
ministered all  of  the  assets  which-  have  come  to  his  hands  he 
cannot  be  held  accountable  for  the  waste  or  mismanagement  of 
a  co-executor  or  co-administrator' of  assets  which  come  into  his 
hands.  It  is  not  the  duty  of  any  one  of  such  joint  officers  to  see 
that  the  others  do  not  abuse  their  trust.  At  common  law  they 
were  liable  generally  each  for  his  own  acts  and  not  for  those  of 

the  others.'* 

Joint  letters  should  not  be  granted  where  one  of  the  parties 
thereto  objects."  In  this  state  every  person  named  in  a  will  as 
executor  must  qualify  and  give  bond  to  entitle  him  to  ^letters. 
Failing  in  this  he  shall  have  no  power  to  act  as  executor.'" 

One  executor  may  qualify  for  general  purposes  and  another 
for  a  special  purpose,  if  such  appears  from  the  will  to  be  the 
intention  of  the  testator."  And  where  one  executor  fails  to 
qualify,  or  renounces  his  trust,  letters  may  issue  to  others  named 

in  the  will."" 

A  release  of  a  debt  by  one  executor  or  administrator  bmds 
the  rest,  and  a  payment  to  or  a  release  from  one  extinguishes 
the  debt,  although  he  may  misappropriate  the  money."  Also, 
one  joint  executor  or  administrator  can  transfer  notes  of  the 
decedent,  or  release  or  assign  a  mortgage  belonging  to  the  de- 
cedent."* 

"  Kerr  v    Kirkpatrick.  43   N.   Car.  such  executor.     But  in  order  to  effect 

137;    Sanderson,    Estate    of,   74   Cal.  this,   it  does   not   seem   indispensable 

199    15  Pac   753  that  each  executor  should  join  in  the 

-Brubaker's  Appeal,  98  Pa.  St.  21.  bond.       One     of     several     executors 

=«  Burns'  R    S    1908,  §  2738.    In  the  might  give  such  a  bond  as  would  not 

case    of    Call    v.    Ewing,    1    Blackf.  only  cover  his  own  acts,  but  also  be 

(Ind.)    301,  the  court  in  considering  an  indemnity  against  any  act  of  his 

the  power  and  authority  of  joint  ex-  co-executors." 

ecutors,  and  the  duty  of  each  to  ex-  -  Schouler  Extrs.  &  Admrs.,   §  40. 

ecute  a  bond,  says :    '-ft  seems,  there-  =  Schouler  Extrs.  &  Ad"irs     §  41 ; 

fore,  that  bond  and  surety  should  be  Bums'  R.   S.  1894,  §  2377;  Miller  v. 

given   for  the  due   execution  of   the  .Meetch,  8  Pa.  St  417. 

will  by  each  person  who  acts  as  ex-  -Oilman    v.    Heab^    55    Me.     20, 

ecutor  under  that  will;   and  that  no  Devling    v.    Little,    26    Pa.    bt.    50Z, 

person  has  authority  to  act  as  exec-  Smith  v.  Everett  27  Beav-  446" 

utor  until  bond  and  surety  be  given  "  Dwight    v.    Newell,    iy"„  ^33 

that    he    will    discharge    his    duty   as  Weir  v.  Mosher,  19  Wis.  330,  Son  v. 


I04 


INDIANA    PROBATE    LAW. 


76 


As  a  rule  where  the  will  vests  in  executors  the  power  to  sell 
real  estate,  all  who  are  acting  as  such  executors  at  the  date  of 
the  sale  must  join  in  the  conveyance. ^^ 

An  executor  or  administrator  may,  however,  ])y  his  own  con- 
duct make  himself  answerable  for  the  misconduct  of  his  co- 
executor  or  co-administrator,  by  conniving  at  his  misconduct,  or 
participating  in  it,  or  where  his  own  negligence  permits  such  co- 
executor  or  administrator  to  do  such  acts  of  waste."'' 

§  76.  Same — Joint  liability,  etc. — Ordinarily  each  execu- 
tor or  administrator  is  liable  only  for  such  portion  of  the  estate 
as  has  come  to  his  hands. "^  But  negligence,  fraud  or  bad  faith 
may  make  one  co-executor  or  administrator  liable  for  the  waste 
or  mismanagement  of  another.-**  One  alone  cannot  confess  a 
judgment  against  the  estate  of  his  decedent."'' 

They  are  liable  personally  and  individually,  no  further  than 
assets  have  come  into  their  hands,  unless  they  have  done  some 
act  which  the  law  considers  as  equivalent  to  an  admission  that 


Miner,  Z1  Barb.  (N.  Y.)  466;  George 
V.  Baker,  3  Allen  (Mass.)  326. 

-'*  Alexander  v.  McMurr}-,  8  Watts 
(Pa.)  504;  Denne  v.  Judge,  11  East 
287;  Croft  v.  Williams,  88  N.  Y.  384; 
Hart  V.  Rust,  46  Texas  556;  Han- 
num  V.  Day,  105  Mass.  ZZ. 

^^  Fennimore  v.  Fennimore,  3  N.  J. 
Eq.  292;  Whiddon  v.  Williams,  98 
Ga.  310,  24  S.  E.  437. 

"Call  V.  Ewing,  1  Blackf.  (Ind.) 
301;  Davis  v.  Walford,  2  Ind.  88; 
Wood  V.  Brown,  34  N.  Y.  ZZ1 ;  Fonte 
V.  Horton,  36  Miss.  350;  Peter  v. 
Beverly,  10  Pet.  (U.  S.)  532,  9  L.  ed. 
522. 

Each  of  two  or  more  executors  or 
administrators  is  liable  only  for  his 
own  acts,  and  for  what  he  receives 
and  applies,  unless  he  joins  in  the  di- 
rection and  misapplication  of  the  as- 
sets. Peter  v.  Beverly,  10  Pet.  (U. 
S.)  532,  9  L.  ed.  522;  Walker  v. 
Walker,  88  Ky.  615,  11   S.  W.  718. 


Or  unless  he  has  such  facts  before 
him  as  would  convince  a  person  of 
ordinary  prudence  that  the  assets  in 
the  hands  of  his  co-executor  or  co- 
administrator are  unsafe  or  being 
wasted.  Walker  v.  Walker,  88  Ky. 
615.  11  S.  W.  718. 

They  are  liable  personally  and  in- 
dividually no  further  than  for  the 
assets  which  came  to  their  hands,  or 
where  they  have  done  some  act  which 
the  law  considers  as  equivalent  to  an 
admission  that  the  assets  were  in 
their  hands  and  power,  and  culpably 
and  negligently  parted  with.  Hall  v. 
Boyd,  6  Pa.  St.  267. 

'"^  Davis  V.  Walford,  2  Ind.  88; 
Schouler  Extrs.  &  Admrs.,  §  402; 
Irwin's  Appeal,  35  Pa.  St.  294;  Blake 
V.  Pegram,  109  Mass.  541 ;  Holcombe 
V.  Holcombe,  13  N.  J.  Eq.  413. 

^  Toller  Extrs.  &  Admrs.  360 ;  Hall 
V.  Boyd,  6  Pa.  St.  267;  Forsyth  v. 
Ganson,  5  Wend.   (N.  Y.)  558. 


76 


EXECUTORS    AND    ADMINISTRATORS. 


105 


the  assets  were  in  their  hands  and  culpably  and  negligently 
parted  with.^°  If  an  executor  or  administrator,  by  any  act  or 
default  on  his  part,  places  the  estate  and  its  management  in  the 
exclusive  power  of  his  co-executor  or  co-administrator,  he  takes 
the  risk  and  peril  of  the  latter's  maladministration  upon  himself, 
unless  he  has  exercised  what  the  courts  call  ordinary  care  and 
prudence.^^ 

And  where  co-executors  or  co-administrators  unite  in  the  mis- 
application of  the  assets  of  the  estate,  both  will  be  held  liable  for 
the  whole.^- 

A  higher  degree  of  care  is  required  of  executors  in  cases  where 


'•Hall  V.  Boyd,  6  Pa.  St.  267;  24 
Cent.  L.  J.  147. 

''  Schouler  Extrs.  &  Admrs.,  §  402; 
Smith  V.  Pettigrew,  34  N.  J.  Eq.  216; 
Head  v.  Bridges,  67  Ga.  227;  Hays 
V.  Hays,  3  Tenn.  Ch.  88;  Weigand's 
Appeal,  28  Pa.  St.  471. 

A  devastavit  of  one  of  two  execu- 
tors does  not  charge  his  companion 
who  has  not  actively  contributed 
thereto,  where  the  debts  were  actu- 
ally collected  by  the  former,  and  the 
product  of  the  sales  of  the  estate, 
whether  made  by  one  or  both,  was 
received  by  him,  and  there  was  no 
waste  except  from  his  misapplication. 
Williams  v.  Maitland,  1  Ired.  Eq. 
(N.  Car.)  92. 

Since  one  of  several  executors  has 
no  power  to  prevent  a  co-executor 
from  receiving  the  assets,  and  each 
has  the  right  to  receive  assets  and 
to  discharge  the  debts  due  to  the  es- 
tate, the  liability  of  each  is  confined 
to  the  assets  he  receives,  unless  he 
connives  at  the  devastavit  of  his  co- 
executor,  or  omits  to  perform  some 
duty  that  is  made  imperative  by  the 
will,  or  his  fiduciary  position.  Walk- 
er V.  Walker,  88  Ky.  615,  11  S.  W. 
718;  Knight  v.  Haynie,  74  Ala.  542; 
Gaultney    v.     Nolan,    33    Miss.    569; 


Shrevc  v.  Joyce,  36  N.  J.  L.  44,  13 
Am.  Rep.  417;  Duncan  v.  Davison,  40 
N.  J.  Eq.  535,  5  Atl.  93;  Adair  v. 
Brimmer,  74  N.  Y.  539;  Clarke  v, 
Jenkins,  3  Rich.  Eq.  (S.  Car.)  318; 
Ca.skie  v.  Harrison,  76  Va.  85. 

'^  Sutherland  v.  Brush,  7  Johns.  Ch, 
(N.  Y.)    17,  11  Am.  Dec.  383n. 

And  though  two  persons  were  co- 
executors  of  an  estate,  and  though 
they  sold  property  of  the  estate  in 
their  official  character,  yet,  for  the 
commission  of  a  fraud  in  the  sale  by 
one  of  them,  he  is  personally  liable, 
and  the  other  is  not  chargeable  there- 
with. Heath  v.  Allin,  1  A.  K.  Marsh. 
(Ky.)  442. 

And  the  acceptance  of  improper 
currency  upon  the  sale  of  the  estate 
of  a  testator  warrants  a  decree 
against  the  estate  of  the  co-executor 
who,  alone,  received  it.  Myrick  v, 
Adams,  4  Munf.  (Va.)  366. 

So,  where  an  administrator  holding 
possession  of  an  asset  of  the  estate 
permits  it  to  pass  from  him  so  as  il- 
legally and  injuriously  to  affect  oth- 
ers, without  the  knowledge  or  assent 
of  his  co-administrator  no  damage 
or  loss  arising  therefrom  can  be  vis- 
ited upon  the  latter.  Frazer  v.  Be- 
vill,  11  Gratt.  (Va.)  9. 


io6 


INDIANA    PROBATE   LAW. 


76 


the  will  gives  specific  directions  for  the  management  of  the  estate, 
and  if  such  directions  are  not  implicitly  followed,  each  executor 
will  be  held  responsible.^^ 

One  executor  or  administrator  who  has  received  funds  of  the 
estate  cannot  exonerate  himself,  and  shift  the  trust  by  paying 
such  funds  to  his  co-executor  or  co-administrator.^* 

But  in  such  case  he  will  not  be  liable  only  so  far  as  the  assets 
so  paid  over  have  been  improperly  applied. ^'^ 

Joint  executors  and  administrators  should  each  execute  a  sepa- 
rate bond,  and  if  a  joint  bond  is  executed,  it  will  be  held  to  be 
the  separate  bond  of  each,  and  the  others  joining  in  its  execution 
will  be  liable  as  sureties  for  the  other.^*^ 


'^Weigand's  Appeal,  28  Pa.  St. 
471;  Weldy's  Appeal,  102  Pa.  St. 
454;  Wilmerding  v.  McKesson,  103 
N.  Y.  329,  8  N.  E.  665 ;  Deaderick  v. 
Cantrell,  10  Yerg.  (Tenn.)  263,  31 
Am.  Dec.  576. 

^*  Edmonds  v.  Crenshaw,  14  Pet. 
(U.  S.)  166,  10  L.  ed.  402;  Langford 
•V.  Gascoyne,  11  Ves.  Jr.  333;  Adair 
V.  Brimmer,  74  N.  Y.  539;  Knight  v. 
Haynie,  74  Ala.  542. 

^  Shipbrook  v.  Hinchinbrook,  11 
Ves.  Jr.  252;  Williams  v.  Nixon,  2 
Beav.  472. 

=' State  V.  Wyant,  67  Ind.  25; 
Moore  v.  State,  49  Ind.  558;  Prich- 
ard  V.  State,  34  Ind.  137;  Braxton  v. 
State,  25  Ind.  82. 

Whether  a  bond  given  by  co-exec- 
utors or  co-administrators  has  the 
.effect  to  make  each  liable  for  the  acts 
of  the  other,  depends  upon  the  in- 
tention of  the  parties,  to  be  gathered 
from  the  instrument  itself.  Little  v. 
Knox,  15  Ala.  576,  50  Am.  Dec.  145. 

Executors  jointly  and  severally  ap- 
pointed by  a  will,  and  jointly  ap- 
pointed by  the  probate  court,  who  ac- 
•cept  the  trust  and  give  a  joint  bond, 
thereby  assume  a  joint  as  well  as  a 
■several    liability.      Probate    Court    v. 


May,  52  Vt.  182;  Marsh  v.  Harring- 
ton, 18  Vt.  150. 

A  joint  bond  given  by  co-adminis- 
trators faithfully  to  administer  the 
estate  binds  each  not  only  for  him- 
self, but  that  his  associate  shall  faith- 
fully perform  his  duty.  Jeffries  v. 
Lawson,  39  Miss.  791;  Clarke  v. 
State,  6  Gill  &  J.  (Md.)  288,  26  Am. 
Dec.  576. 

But  neither  of  two  co-executors  or 
co-administrators,  who  give  several 
and  not  joint  bonds,  is  liable  for 
losses  caused  exclusively  by  the  de- 
fault of  the  other.  McKim  v.  Aul- 
bach,  130  Mass.  481,  39  Am.  Rep. 
470. 

And  executors  and  administrators 
required  to  give  bond,  not  desiring  to 
be  responsible  each  for  the  acts  of  the 
others,  should,  where  permitted  by 
law,  each  execute  a  separate  bond 
with  separate  sureties,  conditioned 
for  the  faithful  performance  by  each 
of  his  duties.  Clarke  v.  State,  6  Gill 
&  J.  (Md.)  288,  26  Am.  Dec.  576; 
Overton  v.  Woodson,  17  Mo.  453; 
Eckert  v.  Myers,  45  Ohio  St.  525.  15 
N.  E.  862. 

And  a  bond  by  which  A  and  B,  ex- 
ecutors, and  C  and  D  as  sureties  for 


§  77  EXECUTORS  AND  ADMINISTRATORS.  IO7 

Co-executors  or  administrators  need  not  join  in  signing  a  re- 
ceipt, but  if  they  do  it  will  be  presumed  that  both  actually  re- 
ceived the  assets  of  the  estate  receipted  for.  This  presumption, 
however,  may  be  rebutted." 

The  same  rule  will  also  apply  to  the  filing  of  joint  accounts. 
Such  account  is  prima  facie  evidence  that  the  assets  of  the  estate 
jointly  reported  were  in  the  actual  custody  of  both.'^ 

Nor  can  joint  executors  or  administrators  escape  liability  by 
making  an  arrangement  between  themselves  to  divide  the  admin- 
istration, each  l)eing  responsible  only  for  what  he  receives.^^ 

In  this  state  where  one  joint  executor  or  administrator,  upon 
the  failure  of  the  others  to  do  so,  makes  and  files  the  inventory 
required  by  statute,  it  will  bar  the  others  from  afterward  acting 
in  the  administration  of  the  estate  with  him  without  his  consent, 
or  leave  of  court.*" 

Where  executors  unite  in  selecting  an  agent  they  will  become 
jointly  liable  for  the  misconduct  of  such  agent."  And  where 
joint  executors  or  administrators  appoint  one  of  their  number 
acting  executor  and  turn  over  to  him  the  sole  management  of  the 
estate,  they  will  be  held  liable  for  his  acts." 

Where  a  joint  executor  or  administrator  dies  his  estate  will 
be  liable  for  whatever  he  was  liable  for  at  the  time  of  his  death."' 

§  77.  Same— Actions  by  and  against.— The  rule  at  com- 
mon law  was  that  all  executors  who  were  named  in  the  will  must 
join  in  bringing  an  action.  But  under  our  statutes,  as  only  those 
who  have  qualified  and  given  bond  can  be  named  in  the  letters, 

A,  and  E  as  surety  for  B,  are  held  Ves.  570;  Glacius  v.  Fogel,  88  N.  Y. 

and  firmlv  bound,  does  not  bind  the  434;  Young's  Appeal,  99  Pa.  St.  74. 
sureties   jointly    for   both    executors,        ^Weldy's  Appeal,  102  Pa.  St.  454; 

but    severally    for    each.      Elliott    v.  Wilson  v.  Lineberger,  94  N.  Car.  641, 

Mayfield,  4  Ala.  417.  55  Am.  Rep.  628;  Viner's  Abndg.,  p. 

"  Schouler  Extrs.  &  Admrs.,  §  402 ;  362. 
McKim  V.  Aulbach,  130  Mass.  481,  39        *»  Burns'  R.  S.  1908,  §  2784. 
Am.   Rep.   470;   Monell   v.   Monell,  5        "  Earle    v.    Earle,    93    N.    Y.    104; 

Johns.  Ch.   (X.  Y.)  283,  9  Am.  Dec.  Cowell  v.  Gatcombe,  27  Beav.    568. 
293  *^Lees  v.  Sanderson,  4  Sim.  28. 

''Suydam  v.  Bastedo,  40  N.  J.  Eq.        «  Prichard  v.  State,  34  Ind.  137. 
433,   2   Atl.   808;    Murvell   v.    Cox,  2 


I08  INDIANA    PROBATE    LAW.  §    ']'] 

and  only  those  so  named  have  any  authority  to  act,  they  alone  are 
authorized  to  sue."  But  where  one  executor  contracts  on  his 
own  account,  he  alone  has  a  right  to  sue  upon  such  contract,  even 
though  the  money  recovered  will  be  assets  of  the  estate.*^ 

Where  an  action  is  brought  against  joint  executors  or  admin- 
istrators in  their  respresentative  capacity  service  should  be  had 
upon  all/"  But  in  such  an  action  the  plaintiff  may  have  judg- 
ment against  such  of  them  as  he  proves  to  be  chargeable,  though 
he  fails  to  show  that  all  are  liable.'*^ 

As  joint  executors  and  administrators  in  law  constitute  but  one 
person,  they  cannot,  at  law,  unless  authorized  by  statute,  sue  or  be 
sued  by  one  another.*^ 

But  in  equity  such  suits  may  be  maintained.  A  court  of  equity 
will  not,  however,  interfere  unless  justice  seems  to  imperatively 
require  it.*^ 

The  proper  course  to  pursue,  though,  where  one  executor  be- 
haves improperly  or  becomes  unfit  to  discharge  the  duties  of  his 
trust,  is  to  procure  his  removal.^" 

His  refusal  to  permit  his  co-executors  or  administrators  to  in- 
spect papers  belonging  to  the  estate  which  are  in  his  possession, 
is  better  ground  for  his  removal,  than  for  an  action  against  him 
to  compel  their  surrender. '^^ 

Those  who  have  undertaken  the  administration  can  be  relieved 
of  liability  only  by  administering  the  assets  of  the  estate  them- 
selves, or  by  giving,  by  their  resignation,  such  assets  into  the  care 
of  the  court  having  probate  jurisdiction.^^ 

"  Schouler  Extrs.  &  Admrs.,  §  103 ;  Beach     v.     Norton,     9     Conn.     181 ; 

Call  V.  Ewing,  1  Blackf.   (Ind.)  301;  Storms  v.  Quackenbush,  34  N.  J.  Eq. 

Duncan    v.    Watson,    28    Miss.    187;  201;   McGregor  v.   McGregor,  35   N. 

Smith  V.  Smith,  11  N.  H.  459.  Y.  218;  Stiver  v.  Stiver,  8  Ohio  217; 

''  Williams  Extrs.,  §  1868.  Bowen  v.  Richardson,  133  Mass.  293. 


'"Owen  V.  Brown,  2  Ala.  126 
Barnes  v.  Jarnagin,  12  S.  &  M 
(Miss.)    108. 

"Judson  V.  Gibbons,  5  Wend.  (N 
Y.)  224. 

**  Schouler  Extrs.  &  Admrs.,  §  403  : 
Martin  v.  Martin,  13  Mo.  36. 

'"  Schouler  Extrs.  &  Admrs.,  §  403  ; 


'"Hesson  v.  Hesson,  14  Md.  8; 
Schouler  Extrs.  &  Admrs.,  §  403. 

'"'^  Chew's  Est.,  2  Pars.  Eq.  Cases 
153. 

'-McNeal  v.  Holbrook,  25  Pa.  St. 
189;  Horton  v.  Brocklehurst,  29 
Beav.  503. 


§    78  EXECUTORS    AND    ADMINISTRATORS.  IO9 

§  78.  Administrator  in  case  of  wrongful  death. — Where  an 
administrator  is  appointed  for  the  sole  purpose  of  bringing  suit 
for  damages  under  the  statute  against  one  by  whose  wrongful  act 
death  has  been  caused,  and  where  such  right  of  action  is  the  only 
asset  of  the  estate  of  such  decedent,  the  administration,  though 
general  in  its  scope,  is  yet  limited  in  the  powers  conferred  and 
the  duties  imposed  upon  such  administrator. 

By  the  ternis  of  §  285,  Burns'  R.  S.  1908,  where  the  death  of 
one  is  caused  by  the  wrongful  act  or  omission  of  another,  the  per- 
sonal representative  of  the  dead  person  may  maintain  an  action 
for  damages  against  the  wrongdoer,  etc.  The  words  "personal 
representative"  used  in  this  statute  have  been  held  to  include  an 
administrator,  and  that  an  administrator  may  be  appointed  for  the 
sole  purpose  of  prosecuting  such  an  action." 

But  in  such  cases  the  appointment  is  not  for  the  purpose  of 
making  assets  for  the  estate  of  the  deceased  person.  The  damages 
recovered  are  for  the  benefit  of  those  supposed  in  some  way  to 
be  dependent  on  the  deceased  and  enure  to  the  exclusive  benefit 
of  the  widow  and  children,  if  any,  of  such  decedent,  or  to  his  next 
of  kin.  In  such  cases  the  administrator  does  not  represent  the 
creditors  of  the  estate,  nor  is  the  fund,  if  any,  recovered  by  him 
subject  to  the  demands  of  creditors,  but  belongs  exclusively  to  the 
classes  above  named. ^* 

While  strictly  speaking  the  right  of  action  given  by  this  statute 
is  no  part  of  the  assets  of  the  estate  proper,  yet  it  is  sufficient  to 
justify  the  appointment  of  an  administrator  with  these  limited 
powers;  more  properly  speaking  not  so  much  an  administrator 
as  a  trustee  for  those  entitled  to  the  damages  arising  from  such 
action. ^^ 

The  administrator  of  such  deceased  person's  estate  is  the  only 

"''Toledo   &c.   R.    Co.   v.   Reeves.  8  Ind.   Ill,  21   N.   E.  472,   12  Am.   St. 

Ind.  App.  667,  35  N.  E.  199;  Ex  parte  371n. 

Jenkins,  25  Ind.  App.  532,  58  N.  E.  '"  Lake  Erie  &c.  R.  Co.  v.  Charman, 

560,  81  Am.  St.  114.  161  Ind.  95,  67  N.  E.  923;  Memphis 

^  Hilliker    v.    Citizens'     Street    R.  &c.  Packet  Co.  v.  Pikey,  142  Ind.  304, 

Co.,  152  Ind.  86,  52  N.  E.  607;  Louis-  40  N.  E.  527. 
ville  &c.  R.  Co.  V.  Goodykoontz,  119 


no  INDIANA    PROBATE    LAW.  §    yS 

person  competent  nnder  this  statute  to  prosecute  the  action  for 
damages  therein  provided;  and  it  makes  no  difference  if  such 
administrator  is  the  general  administrator  of  the  estate,  or  one 
appointed  to  prosecute  the  action.  The  right  is  in  either.'^"  This 
statute  not  only  creates  a  new  cause  of  action  unknown  to  the 
common  law,  but  it  designates  the  person  in  whose  name  or  right 
the  action  can  be  maintained,  and  that  person  is  the  personal  rep- 
resentative of  the  deceased,  who  is  understood  to  be  the  adminis- 
trator of  the  deceased  person's  estate.  The  statute  having  named 
the  person  who  may  prosecute  such  action,  it  excludes  all  others, 
and  therefore  it  cannot  be  maintained  by  any  other  person."*^ 

It  being  said  in  one  case,  "but  one  person  is  designated  by  the 
statute  as  having  a  right  to  sue.  That  person  is  neither  the 
father,  mother,  nor  wife  of  the  decedent,  but  the  personal  repre- 
sentative. The  person  to  whom  the  right  to  sue  is  given  by  stat- 
ute is  the  only  person  who  can  sue  wherever  the  right  is  sought 
to  be  enforced.""'^ 

The  law  is  well  settled  that  this  statute  was  intended  to  provide 

"'  Lake  Erie  &c.  R.  Co.  v.  Charman,  tlie  remedy,  it  is  not  governed  by  the 

161  Ind.  95,  67  N.  E.  923.  law  of  the  forum  which  has  no  ex- 

'"''  Baltimore  &c.   R.   Co.  v.   Gillard,  traterritorial    force.     A   rule   of   law 

3^4  Ind.  App.  339,  71  N.  E.  58.  which    is    clearly    established   by   the 

'**  Fabel  v.  Cleveland  &c.  R.  Co.,  30  authorities   is  that  where   a  right  of 

Ind.  App.  268,  65  N.  E.  929.  action  for  damages  for  death  is  given 

In  this  case  the  court  say:  "As  ap-  by  statute  of  one  state,  and  it  is  pro- 
pellant  has  planted  his  action  on  the  vided  by  such  statute  that  the  action 
Ohio  statute,  he  must  recover  upon  must  be  brought  in  the  name  of  a 
that,  or  not  at  all.  That  statute  gives  party  designated  by  the  statute,  the 
a  new  cause  of  action  not  recognized  right  may  be  enforced  in  another 
by  the  common  law,  and  places  the  state  having  a  similar  statute,  but 
right  to  prosecute  such  action  in  the  the  action  cannot  be  brought  in  an- 
personal  representative  of  the  de-  other  state  by  any  other  party  than 
ceased,  and  not  in  the  father  or  any  the  one  to  whom  the  right  is  given 
one  else.  The  question  for  decision  by  the  statute  on  which  it  is  based, 
is  simply  this :  The  right  of  action  To  state  the  rule  correctly,  the  action 
given  by  the  statute,  being  in  deroga-  must  be  instituted  by  and  in  the 
tion  of  the  common  law,  must  such  name  of  the  party  designated  by  the 
action  be  prosecuted  by  the  person  statute  of  the  state  where  the  cause 
designated  by  the  statute,  or  can  it  of  action  arose,  even  when  such  ac- 
he prosecuted  by  some  one  else?  If  tion  is  brought  in  another  state 
it   affects   the   right,   and  not  merely  whose  statute  provides  that  such  ac- 


§    y8  EXECUTORS   AND   ADMINISTRATORS.  Ill 

a  remedy  not  only  for  citizens  of  this  state,  but  for  citizens  of 
other  states  while  passing  through  or  residing  in  this  state,  and 
for  this  reason  foreign  administrators  are  permitted  to  maintain 
actions  under  this  statute ;  the  fund  recovered  though,  when  re- 
covered must  be  held  by  the  personal  representative,  whether  he 
be  domestic  or  foreign,  as  the  trustee  of  an  express  trust  for  the 
benefit  of  those  designated  in  the  statute.^" 

tion  shall  be  brought  by  some  other  N.  E.  527;  Jeffersonville  &c.  R.  Co.  v. 

party."  Hendricks,    41    Ind.    48;    Dennick    v. 

"•Pennsylvania    Co.    v.    Coyes,    163  Railroad  Co.,  103  U.  S.  11,  26  L.  ed. 

Ind.  631,  72  N.  E.  875;  Memphis  &c.  439. 
Packet  Co.  v.  Pikcy,  142  Ind.  304,  40 


CHAPTER  V. 

FOREIGN   EXECUTORS   AND   ADMINISTRATORS. 

§  79.  Defining  foreign  administration.     §  84.  Allowance  of   claim    in   foreign 

80.  Rights  of  foreign  executors.  jurisdiction. 

81.  Right  to  bring  suits.  85.  Same — Effect  of  on  real  estate. 

82.  Same  subject.  86.  Right  to  sell  real  estate. 

83.  Right  and  title  to  property.  87.  Same  continued. 

88.  Same — Bond  required. 

§  79.  Defining  foreign  administration, — The  term  foreign 
administration  means  an  administration  originating  in  some  other 
jurisdiction  than  that  of  this  state,  and  the  phrase  foreign  execu- 
tor or  administrator  has  reference  only  to  the  foreign  origin  of 
the  representative  capacity  and  not  to  the  non-residence  of  the 
individual  holding  the  office,  not  the  residence  but  the  creation  of 
the  official  character  by  force  of  a  law  foreign  to  our  own  is  the 
criterion. 

In  the  absence  of  any  statute  upon  the  subject  a  foreign  execu- 
tor or  administrator  has  no  power  or  authority  beyond  the  juris- 
diction of  the  state  wherein  his  appointment  was  made.  His 
representative  character  l3eing  dependent  upon  the  laws  of  that 
state,  it  is  only  in  such  state  that  such  laws  have  any  force  and 
effect. 

The  jurisdiction  of  each  state  of  this  Union  is  sovereign  and 
independent  in  granting  letters  of  administration,  as  much  so  as 
that  of  any  two  foreign  states.  The  grant,  when  made,  invests 
the  administrator  under  the  authority  of  that  state  with  the  pro- 
prietorship of  the  effects  of  the  decedent  within  that  state,  but, 
having  no  jurisdiction  beyond  its  own  limits,  it  can  confer  no 
authority  or  right  of  property  upon  him  outside  of  those  limits.^ 

'Stacy  V.  Thrasher,  6  How.  (U.  10  L.  R.  A.  861;  Smith  v.  Smith,  174 
S.)  44,  12  L.  ed.  337;  McGarvey  v.  111.  52,  50  N.  E.  1083,  43  L.  R.  A. 
Darnall,  134  111.  367,  25  N.  E.  1005,    403 ;  Braithwaite  v.  HarA^ey,  14  Mont. 

112 


§    79  FOREIGN    EXECUTORS    AXD    ADMINISTRATORS.  II3 

As  a  rule  the  administration  of  the  assets  of  an  estate  is  gov- 
erned by  the  law  where  the  personal  property  is  situated,  and  the 
administrator  acts  as  to  the  creditors  of  a  decedent  without  re- 
gard to  the  domicile  of  such  creditors.- 

But  no  executor  or  administrator  as  such  has  any  authority 
out  of  the  state  in  which  he  has  qualified.^  And  if  a  foreign  state 
acknowledges  the  title  and  authority  of  an  executor  or  adminis- 
trator appointed  in  another  jurisdiction  it  is  done  ex  comitate.'* 

Foreign  administrators  are  independent  of  each  other,  no  con- 
nection exists  between  them,  each  represents  the  decedent  by  an 
authority  coextensive  only  with  the  state  in  which  his  appoint- 
ment is  made,  and  each  is  as  much  a  stranger  to  the  other  in  re- 
spect of  their  appointment,  powers,  estates,  duties  and  liabilities 
as  are  administrators  of  different  decedents.  They  derive  their 
authority  from  different  sovereignties  and  over  different  property, 
the  authority  of  each  being  paramount  to  the  other,  and  each  is 
accountable  to  the  authority  from  whom  he  receives  his  appoint- 
ment. 

In  this  connection  one  author  writes:    "It  follows  from  this 

208,  36  Pac.  38,  43  Am.  St.  625,   27  taking    exclusive    possession    of    and 

L.    R.   A.    lOln ;    Johnson  v.    Powers,  occupying  the  same,  neither  is  he,  in- 

139  U.  S.  156,  35  L.  ed.  112,  11  Sup.  dividually  or   as  administrator,  liable 

Ct.  525 :  Slauter  v.  Chenowith,  7  Ind.  for  rents  and  profits  which  accrue  on 

211.  account    of    such    occupancy,    and    a 

If   a   creditor   wishes   a  suit   to  be  judgment    of   the    court   against   him 

brought  in  any  foreign  country  in  or-  therefor   as   administrator   is    errone- 

der  to  reach  the  effects  of  a  deceased  ous.    Fairchild  v.  Hagel,  54  Ark.  61, 

testator  or  intestate   situated  therein,  14  S.  W.  1102. 

letters     of     administration     must     be  'Campbell     v.     Sheldon,     13     Pick, 

taken   out   in   due   form   according  to  (Mass.)  8. 

the  local  law,  as  the  executor  or  ad-  *  Story  Conf.  Laws,  §  512. 

ministrator      appointed      in    •  another  Where  a  receiver  or  administrator. 

country  is  not  suable  there  and  has  or  other  custodian  of  an  estate,  is  ap- 

no  positive  right  to  or  authority  over  pointed  by  the  courts  of  one  state,  the 

those  assets,  neither  is  he  responsible  courts  of  that  state  reserve  to  them- 

therefor.     Baker    v.    Smith,    3    Met.  selves  full  and  exclusive  jurisdiction 

(Ky.)  264.  over  the  assets  of  the  estate  within 

=  Jones  V.  Drewry,  12  Ala.  311.  the  limits  of  the   state.    Reynolds   v. 

A    foreign    administrator    has    no  Stockton,    140  U.    S.   254,   35   L.   ed. 

right  to  the  possession  of  land  and  is  464,  11  Sup.  Ct.  ITh. 
not  liable  in  his  fiduciary  capacity  for 

&— Pro.  L.\w. 


114  INDIANA    PROBATE    LAW.  §    79 

doctrine  that  where  a  person  dying  leaves  property  in  several  dif- 
ferent jurisdictions,  the  legal  representatives  of  such  person  must 
derive  their  authority  from  each  of  as  many  sovereignties  as  may 
have  jurisdiction  over  the  property  so  left,  because  the  territorial 
element  of  the  law,  or  rather  of  the  sovereignty  from  which  the 
law  emanates,  permits  no  other  sovereignty  to  exercise  authority 
over  it,  and  each  therefore  must  itself  create  the  legal  ownership 
necessary  in  its  devolution."^ 

And  while  the  law  of  the  domicile  of  the  decedent  governs  the 
descent  and  transmission  of  personal  property  to  heirs  and  lega- 
tees, it  follows  from  the  exclusive  authority  of  one  nation  over 
the  property  and  persons  within  its  jurisdiction,  that  the  mode  of 
administration,  including  the  method  of  paying  debts,  their  right 
to  priority  of  payment,  and  the  marshalling  of  assets  for  this 
purf)ose,  is  governed  altogether  by  the  law  of  the  country  in 
which  the  executor  or  administrator  acts,  entirely  independent  of 
that  in  the  domicile  of  the  decedent,  or  in  any  other  jurisdiction." 

But  where  the  legal  title  to  the  personal  property  of  a  decedent 
has  once  become  fully  vested  in  the  personal  representative  of 
such  decedent  such  representative  may  remove  such  property  or 
follow  it  into  a  foreign  jurisdiction  without  forfeiting  or  losing 
such  ownership.  The  title  once  duly  acquired  by  the  law  of  the 
place  where  it  is  situated  becomes  fixed  and  will  be  deemed  valid 
and  will  be  respected  in  every  other  country.'^ 

The  administration  in  each  state  is  wholly  independent,  so  that 

'Woerner's      Am.      Law      Admin.,  Kennedy    v.    Kennedy,    8    Ala.    391; 

§  158.  McGehee  v.  Polk,  24  Ga.  406. 

'Woerner's     Am.      Law      Admin.,  'Story   Conf.  Laws,  §  516;   Woer- 

§  166;  Story  Conf.  Laws,  §§  524,  525;  ner  Am.  Law  Admin.,  §  159;  Brown 

Smith  V.  Union  Bank,  5  Pet.  (U.  S.)  v.   Knapp,  79  N.   Y.    136;    Collins  v. 

518,  8  L.   ed.  212,   the  court  saying:  Bankhead,  1   Strob.   (S.  Car.)   25.    It 

"Every  sovereign  has  his  own  code  of  has  been  held  that  where   a  negoti- 

administration,  varying  to  infinity  as  able  note  matures  after  the  testator's 

to  the  order  of  paying  debts;  and  al-  death  it  becomes  vested  in  the  local 

most  without  an  exception,  asserting  executor,    who    may    sue    upon    it    in 

the  right  to  be  himself  first  paid  out  another  state  without  taking  out  let- 

of  the  assets.     And  the  obligation  in  ters  there.   Giddings  v.  Green,  48  Fed. 

the  administrator  to  conform  to  such  489. 
laws,    is    very    generally    enforced.' 


§   80  FOREIGN    EXECUTORS   AND   ADMINISTRATORS.  II 5 

an  executor  or  administrator  in  one  state  is  not  bound  to  inven- 
tory, or  in  any  manner  account  for  assets  of  his  decedent  in  the 
possession  of  an  executor  or  administrator  in  another  state.® 

§  80.  Rights  of  foreign  executors. — Where  local  laws  ex- 
ist in  this  state  in  regard  to  executors  and  administrators  ap- 
pointed in  another  state,  such  laws  must  be  substantially  complied 
with  before  such  foreign  executor  or  administrator  will  be  recog- 
nized in  this  state. 

The  following  statutes  in  this  state,  strictly  construed,  apply 
only  to  executors  or  trustees  appointed  in  some  will  from  a  for- 
eign jurisdiction,  or  an  administrator  with  the  will  annexed  of 
such  foreign  will.    The  statutes  read  as  follows : 

"When  a  will  is  executed  in  another  state  or  country,  and  ad- 
mitted to  record  in  this  state,  the  executor  or  administrator  with 
the  will  annexed,  and  any  trustee  appointed  by  such  will  or  by 
any  court  of  this  state  to  perfonn  any  duty  or  to  carry  into  effect 
any  trust  created  by  such  will,  shall  have  all  the  rights,  powers 
and  authority,  and  shall  be  subject  to  the  same  liabilities  respect- 
ing their  respective  duties  and  trusts,  as  executors,  administrators 
with  the  will  annexed,  and  trustees  under  wills  duly  executed  and 
admitted  to  probate  in  this  state."" 

"The  courts  of  this  state  shall,  in  all  such  cases,  have  the  same 
iurisdiction  and  powers  over  the  appointment,  filling  vacancies, 
requiring  sureties,  and  enforcing,  directing  and  restraining  the 

'  Sherman  v.  Page,  85  N.  Y.  123.  given  by   Call   has   any  reference  to 

•Burns'  R.  S.   1908,  §  2814;  Lucas  the  conduct  of  Hart  as  executor.    If 

V.    Tucker,   17   Ind.   41.    In  the  case  it  has  not,  Hart  cannot  be  considered 

of   Call   V.   Ewing,    1    Blackf.    (Ind.)  as  an  executor  under  our  act  of  as- 

301,  the  court  having  under  consider-  sembly,  nor  can  he  be  joined  in   an 

ation    the   question    as    to    the    rights  action  as  executor." 

and    powers    of    a    foreign    executor  In  Lucas  v.  Tucker,  17  Ind.  41,  the 

who  had  not  complied  with  the  laws  court   says:    "That   an   executor   de- 

of  this  state  in  reference  to  the  exe-  rives  his  power  to  act  as  such,  m  ref- 

cution    of    a   bond,    said:     "Hart    re-  erence  to  the  transfer  of  immovable 

sided  in  Kentucky;  he  has  not  proved  property,  from  a  compliance  with  the 

the  will,  nor  intimated  any  intention  law  of  the  place  where  he  attempts 

of  acting  as  an  executor  under  it ;  so  to   operate    under    the    will,    and   not 

that    we    cannot    suppose    the    bond  from  the  will  alone.' 


Il6  INDIANA    PROBATE    LAW.  §    8 1 

performance  and  execution  of  the  duties  and  trusts  of  such  exec- 
utors, administrators  with  the  will  annexed,  and  trustees,  as 
are  given  to  such  courts  respecting  the  same  matters  arising  un- 
der wills  duly  executed  and  admitted  to  probate  in  this  state. "^"^ 

A  testator  may  appoint  different  executors  in  different  coun- 
tries in  which  his  proj^erty  is  situated,  or  different  executors  as 
to  different  portions  of  his  estate  in  the  same  countr\'.^^ 

A  person  claiming  under  a  will  proved  in  one  state  cannot  in- 
termeddle with  or  sue  for  personal  property  of  a  testator  in  an- 
other state,  unless  the  will  also  be  pro\ed  in  that  state,  or  unless 
he  be  permitted  to  do  so  by  some  law  of  that  state. ^^ 

The  provisions  of  such  statutes  as  these  do  not  exclude  or  pre- 
vent the  grant  of  letters  to  some  one  within  the  jurisdiction  of 
this  state.  The  rights  given  are  but  cumulative  and  not  exclu- 
sive." 

§  81.  Right  to  bring  suit. — In  the  absence  of  some  statute 
granting  authority,  the  power  of  an  executor  or  administrator  is 
circumscribed  by  the  boundari  ;s  of  the  state  in  which  he  receives 
his  letters,  and  he  cannot  bring  an  action  nor  collect  a  claim  in 
another  state  without  first  taking  out  ancillary  letters  of  adminis- 
tration.^*    But  in  this  state  by  statute,  under  certain  restrictions, 

"  Burns' R.  S.  1908,  §  2815.  (Tenn.)     86;    Brodie    v.     Bickley,    2 

"Hunter    v.    Bryson,    5    Gill    &    J.  Rawle  (Pa.)  431, 

(Md.)  483,  25  Am.  Dec.  313.  And    if   sued   in   his    representative 

"  Lucas  V.  Tucker,  ''i?  Ind.  41.  capacity  the  fact  of  his  appearing  and 

The  power  of  an  executor  is  given  pleading  will  not  alter  the  rule,  his 
by  the  will  of  the  testator  but  his  authority  being  limited,  and  when  ex- 
right  to  appear  in  any  court  and  the  ceeded  his  actions  have  no  binding^ 
validity  of  his  acts  in  that  capacity  effect.  Judy  v.  Kelley,  11  111.  211,  50 
depend  wholly  upon  the  probation  of  Am.  Dec.  455. 

the    will    by    the    prerogative    court,  "  Epping  v.  Robinson,  21  Fla.  36. 

within  the  limits  of  that  local  juris-  "  Stewart  v.  O'Donnell  2  Dem.   (X. 

diction  in  which  he  claims  the  power  Y.)    17. 

to  act.    Riley  v.  Riley,  3  Day  (Conn.)  An     administratrix,     appointed     in 

74,  3  Am.  Dec.  260.  Colorado,  of  an  intestate  dying  there, 

He  is  onlj'  accountable  to  the  legal  whose  domicil  was  in  Illinois,  where 
tribunals  of  the  state  where  appointed,  his  son  also  took  out  letters  of  ad- 
Fay  V.  Haven,  3  Met.  (Mass.)  109;  ministration,  has  no  title  upon  which 
Vermilj'a  v.  Beatty,  6  Barb.  (N.  Y.)  she  can  maintain  suit  in  Kansas  upon 
429;     Sparks    v.    White,    7    Humph,  notes   and  mortgages   against   parties 


§    8l  FOREIGN   EXECUTORS   AND   ADMINISTRATORS.  II 7 

a  foreign  executor  or  administrator  may  maintain  a  suit  in  this 
state  without  taking  out  ancillary  letters. 

As  a  rule  an  executor  or  administrator  cannot,  simply  by  virtue 
of  letters  testamentary  or  of  administration  granted  in  one  state, 
maintain  an  action  in  any  other  state. ^^  Such  authority,  when  it 
exists,  does  not  exist  as  a  matter  of  right,  but  by  statute.  The 
statute  in  this  state  reads :  "A  non-resident  executor  or  adminis- 
trator, duly  appointed  in  any  other  state  or  country,  may  com- 
mence and  prosecute  any  suit  in  any  court  of  this  state,  in  his 
capacity  of  executor  or  administrator,  in  like  manner  and  under 
like  restrictions  as  a  resident;  and  a  copy  of  his  letters,  duly 
authenticated  in  like  manner  as  provided  in  this  act,^^  being  pro- 
duced and  filed  in  the  court  in  which  such  suit  is  brought,  shall  be 
sufficient  evidence  of  his  due  appointment:  Provided,  That  he 
shall  give  bond  for  costs  under  the  laws  regulating  the  main- 
taining of  suits  by  non-resident  citizens."" 

Under  this  section  of  the  statute  a  foreign  executor  or  admin- 
istrator, as  well  as  a  resident,  may  sue,  and,  unless  his  authority 
be  denied  under  oath,  his  capacity  and  right  to  sue  are  admitted, 
and  no  proof  of  his  appointment  need  be  offered  in  evidence.^^ 

dumiciled  there,  where  the  mortgaged  Y.  Ch.  L.  ed.  139,  32  Am.  Dec.  627n; 

lands  also  are  situated,  and  where  no  \'ermi!ya  v.  Bcatty,  6  Barb.   (N.  Y.) 

letters    have    been    issued,    although  429. 

such  notes  and  mortgages  were  in  in-  Nor  can   he  be   substituted   in   the 

testate's  possession  at  his  death,  and  place   of   the   deceased   in   an   action 

have   come    into   her   possession,    and  therein,    pending  against   him   at  the 

have   not   been   in  the   possession   of  time  of  his  death.    The  rule  is  other- 

the  administrator  in  Illinois.    Moore  wise  where  the  executor  has  brought 

V    Jordan,  36  Kan.  271,  13  Pac.  337,  assets   of   the   estate   into   this   state. 

59  Am.  Rep.  550.  In  re  Webb,   11  Hun   (N.   Y.)    124; 

^R.    S.    1824,    p.    324;    Naylor    v.  Lyman  v.  Parsons,  28  Barb.  (N.  Y.) 

Moody,  2  Blackf.    (Ind.)    247;   Nay-  564;   Metcalf  v.   Clark,  41   Barb.    (N. 

lor  V.  Moody,  3  Blackf.  (Ind.)  92.  Y.)  45;  Pugh  v.  Jones,  6  Leigh.  (Va.) 

A   foreign   executor   cannot    main-  299;  Smith  v.  Webb,  1  Barb.  (N.  Y.) 

tain  an  action  here  by  virtue  of  his  230. 

appointment  abroad.   Metcalf  v.  Clark,  '"  Burns'  R.  S.  1908,  §  2758. 

41   Barb.    (N.  Y.)   45.    See   Smith  v.  "Burns'  R.  S.  1908,  §  2816. 

Webb,  1  Barb.    (N.  Y.)   230;  Slatter  "  I^Iatlock  v.    Powell,    14   Ind.   378. 

V.  Carroll,  2  Sandf.  Ch.  (N.  Y.)  573,  In  Nolte  v.  Libbert,  34  Ind.  163,  the 

7  N.  Y.  Ch.  L.  ed.  708;   McNamara  court,  in  considering  the  proper  mode 

V.  Dwyer,  7  Paige  (N.  Y.)  239,  4  N.  of  raising  the  question  as  to  the  ca- 


ii8 


INDIANA    PROBATE   LAW. 


8l 


An  earlier  statute  required  the  letters  to  be  entered  of  record  in 
some  circuit  court  of  this  state,  prior  to  the  commencement  of  an 
action  by  a  foreign  executor  or  administrator.^*  Such  letters,  or 
authenticated  copies  thereof,  now  need  only  be  produced  and  filed 
in  the  court  in  which  the  suit  is  brought.  The  time  when  such 
authenticated  copies  of  the  letters  should  be  filed  is  not  so  ma- 
terial, as  they  are  not  to  be  considered  as  a  part  of  the  pleadings, 
but  only  as  evidence  of  the  appointment  of  such  executor  or  ad- 
ministrator."" 


pacity  of  an  executor  or  administra- 
tor to  sue,  said:  "But  where  the 
action  is  brought  by  an  executor  or 
administrator,  his  right  to  sue  can 
only  be  called  in  question  by  a  plea 
in  abatement  sworn  to."  See,  also, 
Kelley  v.  Love,  35  Ind.  106. 

In  Barnett  v.  Vanmeter,  7  Ind. 
App.  45,  33  N.  E.  666,  the  court,  in 
considering  the  right  of  an  adminis- 
trator to  sue  and  the  allegations  nec- 
essary, says :  "In  case  of  suit  by  him, 
he  need  only  aver  that  he  is  the  ad- 
ministrator, and  need  not  make  prof- 
ert  of  his  letters,  nor  can  his  right  to 
sue  be  questioned  unless  the  defend- 
ant files  a  plea  under  oath  denying 
such  right,  and  such  a  pleading  is  in 
abatement  and  not  in  bar." 

"^R.  S.  1824,  p.  324;  Naylor  v. 
Moody,  2  Blackf.  (Ind.)  247;  Naylor 
V.  Moody,  3  Blackf.   (Ind.)  92. 

™  Upton  V.  Adams,  27  Ind.  432; 
Jefifersonville  R.  Co.  v.  Hendricks,  26 
Ind.  228.  In  the  case  of  Jelly  v.  Ste- 
vens, 4  Ind.  510,  the  court,  in  consid- 
ering the  question  as  to  the  allega- 
tions in  the  pleadings  to  the  filing  of 
the  letters  of  a  foreign  administrator 
when  he  sues  as  such,  said:  "We 
think  it"  (the  declaration)  "need  not 
state  that  the  letters  of  administra- 
tion were  produced  and  filed,  etc. 
The  statute,  it  seems  to  us,  was  in- 
tended to  affect  only  the  rules  of  ev- 


idence in  such  cases,  and  not  those 
of  pleading.  Had  the  appellee's  ap- 
pointment as  administrator  been  con- 
tested by  plea  to  the  action,  then  the 
letters  would  not  have  been  evidence 
of  that  fact  without  being  produced 
and  filed  in  the  court  in  which  the 
suit  was  brought.  But  the  act,  in  our 
opinion,  does  not  require  that  such 
production  and  filing  should  appear 
in  the  declaration." 

The  court,  in  the  case  of  the  Jef- 
fersonville  R.  Co.  v.  Hendricks,  26 
Ind.  228,  in  construing  the  section 
granting  the  right  of  foreign  execu- 
tors and  administrators  to  sue  in  this 
state,  said:  "The  last  clause  of  the 
section  relates  to  the  evidence  of  the 
right  to  sue  as  such  executor  or  ad- 
ministrator, when  that  right  is  prop- 
erly denied  or  put  in  issue,  and  does 
not  require  that  a  duly  authenticated 
copy  of  the  letters  should  be  filed  in 
the  clerk's  office  of  the  county,  before 
the  suit  is  commenced." 

And  in  the  case  of  Upton  v.  Ad- 
ams, 27  Ind.  432,  the  same  question 
being  under  consideration,  the  court 
said:  "The  right  of  a  foreign  execu- 
tor or  administrator  to  sue  is  not 
dependent  upon  his  filing  here  a  copy 
of  his  letters.  The  statute  relied  on 
by  the  appellant  does  not  require 
such  filing  at  all.  It  merely  declares, 
as  a  rule  of  evidence,  in  case  his  au- 


§    82  FOREIGN    EXECUTORS    AND    ADMINISTRATORS.  II9 

§  82.  Same  subject. — Suits  brought  by  foreign  executors 
or  administrators,  under  this  statute,  will  be  governed  in  all  re- 
spects by  the  same  rules  of  pleading  and  procedure  as  are  actions 
begun  by  resident  administrators.-^ 

While  an  administrator  of  another  state  cannot  be  sued  in  his 
representative  capacity,  outside  the  jurisdiction  to  which  he  owes 
his  appointment,  yet  if  he  comes  into  the  jurisdiction  of  the 
courts  of  this  state  by  a  compliance  with  our  statutes,  he  submits 
himself  sufficiently  to  this  jurisdiction  as  to  be  liable  to  a  suit  in 
his  representative  capacity,  the  same  as  are  resident  executors 
and  administrators. 

There  is  no  privity  between  different  administrations,  and  a 
judgment  against  an  administrator  in  one  jurisdiction  does  not 
estop  one  in  another.  In  the  case  of  different  administrations, 
each  administrator  is  so  far  independent  of  the  others  that  prop- 
erty reclaimed  under  one  cannot  be  sued  for  under  another, 
though  it  may  at  any  time  be  within  the  jurisdiction  of  the 
latter." 

A  foreign  administrator  may  be  proceeded  against  in  this  state 
by  attachment,  but  if  the  cause  of  action  is  against  him  in  his 
representative  capacity,  a  personal  judgment  should  not  be  ren- 
dered against  him.-^ 

It  has  been  held  that  where  there  are  no  creditors  of  an  in- 
testate,  nor  any  person  entitled   as   heir  or  distributee  at  the 

thority  shall  come  in  question,  that  a  executor    took    out   letters    testamen- 

copy    of    the    letters"    (produced   and  tary   in   both   countries,   in   a  suit  in 

filed  in  the  court)  "shall  be  sufficient  England  against  the  executor  by  the 

evidence  of  his  appointment.    We  do  administrator  of  a  deceased  claimant, 

not    perceive    that    this    language    is  the  parties  were  restricted  to  the  lim- 

open  to  construction."  its  of  the  country  to  which  their  let- 

^  Collins  V.  Ayers,  13  111.  358.  ters    extended.      Under    his    English 

"Story   Confl.    Laws,    §  518;    Hoi-  letters  the  executor  could  do  no  act 

comb  V.  Phelps,  16  Conn.  127 ;  Brodie  as     executor    beyond    England,    nor 

V.  Bickley,  2  Rawle  (Pa.)   431;  Mer-  could     he     voluntarily    transfer    the 

rill  V.  New  England  &c.  Ins.  Co.,  103  Pennsylvania    assets    to    the    foreign 

Mass.  245,  4  Am.  Rep.  548;  Price  v.  jurisdiction    to    be    distributed    there. 

Mace,  47  Wis.  23,  1  N.  W.  336.  Aspden   v.   Nixon,  4  How.    (U.    S.) 

Where  a  person  domiciled  in  Eng-  467,  11  L.  ed.  1059. 

land   died,   leaving   property   both   in  ^  Lewis  v.  Reed,  11  Ind.  239. 
England   and    Pennsylvania,   and   the 


I20  INDIANA    PROBATE    LAW.  §    83 

domicile  of  the  debtor,  a  voluntary  payment  by  such  debtor  to  a 
foreign  administrator  was  good  as  against  the  claim  of  an  admin- 
istrator duly  appointed  at  the  place  of  the  debtor's  domicile."* 

But  as  a  rule  foreign  administrators  cannot  release  or  control 
simple  contract  debts  in  the  jurisdiction  of  the  primary  adminis- 
tration."'^ 

Where  no  administration  has  been  taken  out  in  a  foreign  juris- 
diction, property  of  the  decedent  coming  from  such  foreign 
jurisdiction  into  the  hands  of  the  domestic  administrator  makes 
him  responsible  therefor.-"  Such  property  immediately  vests  in 
the  domestic  administrator.-^ 

The  statute  in  this  state  gives  a  right  of  action  for  the  death  of 
a  person  caused  by  the  wrongful  act  or  omission  of  another,  and 
the  right  accrues  on  behalf  of  citizens  of  other  states  or  countries 
whose  death  may  be  so  caused  while  passing  through  or  residing 
in  this  state;  and  it  has  been  held  that  a  foreign  executor  or 
administrator  may  maintain  an  action  under  this  statute  and  the 
damages  recovered  will  be  held  in  trust  for  the  widow  and  chil- 
dren, or  next  of  kin  of  the  deceased."^ 

§  83.  Right  and  title  to  property. — In  regard  to  the  title  of 
executors  and  administrators  to  the  property  of  a  decedent,  de- 
rived from  a  grant  of  administration  in  the  country  where  the 

■*Wilkins  v.  Ellett,  9  Wall.  (U.  S.)  entire  personal  estate,  wherever  situ- 

740,  19  L.  ed.  586.  ate ;  and  the  title  so  derived  will  be 

An  executor  or  administrator,  un-  recognized,  by  comity,  by  the  courts 
der  letters  granted  at  the  domicile  of  of  another  state,  unless  creditors  re- 
the  deceased,  may  receive  and  dis-  siding  in  the  latter  state  have  pre- 
charge  a  debt  voluntarily  paid  to  him  vionsly  intervened  and  taken  out  let- 
in  another  jurisdiction,  may  transfer  ters  for  their  protection.  Election  of 
negotiable  choses  in  action  so  as  to  Directors  of  Cape  May  &c.  Nav.  Co., 
enable  the  transferee  to  sue  in  his  51  N.  J.  L.  78,  16  Atl.  191. 
own  name  in  the  courts  of  another  ^Chapman  v.  Fish,  6  Hill  (N.  Y.) 
state,  may  receive  dividends  on,  and  554. 

sell  and  transfer,  stock  in  a  corpora-  "'Wells  v.  Miller,  45  111.  382. 

tion  of  another  state.     These  acts  he  ^  Collins    v.    Bankhead,    1    Strobh. 

may   do    for   the    reason    that   letters  (S.  Car.)  25. 

granted  at  the  domicile  of  the  de-  "*  Jeffersonville  R.  Co.  v.  Hen- 
ceased  by  operation  of  law  vest  in  dricks,  26  Ind.  228;  Jeffersonville  &c. 
the    e.xecutor    or    administrator    the  R.  Co.  v.  Hendricks,  41  Ind.  48. 


§    83  FOREIGN    EXECUTORS    AXD   ADMINISTRATORS.  121 

deceased  resided,  it  is  to  be  considered  that  such  title  cannot,  de 
jure,  extend,  as  a  matter  of  right,  beyond  the  territory  of  the 
government  which  grants  it."^  But  inasmuch  as  our  statute 
authorizes  a  non-resident  executor  or  administrator  to  sue  in  the 
courts  of  this  state  it  would  seem  that  bringing  evidences  of  debt 
here  from  the  state  or  country  in  which  administration  was 
granted  could  not  work  a  forfeiture  of  the  title  of  such  executor 
or  administrator;  they  are  prohibited,  however,  from  removing 
assets  of  the  estate  which  may  come  into  their  possession  from 
the  jurisdiction  of  the  courts  of  this  state  until  all  the  just  claims 
of  resident  creditors,  legatees  and  distributees  are  fully  satisfied.^" 
But  if  such  title  as  to  personal  property  is  acknowledged  in  a 
foreign  representative  it  is  so  acknowledged  only  from  comity, 
and  comity  should  always  yield  to  the  local  obligation  of  protect- 
ing domestic  creditors  and  domestic  rights  as  against  foreign 
rights. ^^  The  result  follows  from  the  doctrine  of  comity  that 
executors  or  administrators  duly  appointed  in  another  state  have 
a  right  to  take  charge  of  and  control  personal  property  of  their 

"Story's  Confl.  Laws,  §  312.  ence    to   its   institutions   and   the   in- 

Every    grant    of    administration    is  terests  of  its  own  citizens.     Greer  v. 

strictly  confined  in  its  authority  and  Ferguson,  56  Ark.  324,  19  S.  W.  966 j^ 

operation  to  the  limits  of  the  terri-  following    Vaughan    v.    Northup,    15 

tory  of  the  government  which  grants  Pet.  (U.  S.)  1,  10  L.  ed.  639. 

it   and   does   not   de   jure   extend   to  "^Thomasson    v.    Brown,    43    Ind. 

other  countries.  Vaughan  v.  Northup,  203. 

15    Pet.    (U.    S.)    1,    10   L.    ed.   639;  "Moore    v.    Fields,    42    Pa.    467; 

Greer  v.  Ferguson,  56  Ark.  324,  19  S.  Schoulcr  E.xtrs.  &  Admrs.  315. 

W.  966;  Taylor  v.  Barron,  35  N.  H.  The  courts  will  assume  jurisdiction 

484;   Leonard  v.   Putnam,  51   N.   H.  over     such      administrator,      coming 

247,  12  Am.  Rep.  106.  within  the  jurisdiction  of  the  court, 

Therefore  his  authority  cannot  be  with  property  of  the  deceased  which 

more  extensive  than  that  of  the  gov-  he  wrongfully  applies  to  his  own  use. 

ernment    from   which   he   receives   it.  Brown    v.    Brown,  4    Edw.    Ch.    (N. 

Stacy  V.  Thrasher,  6  How.    (U.   S.)  Y.)    343,    6    L.    ed.    899;    Brown    v. 

44,  12  L.  ed.  Z2>7.  Brown,  1  Barb.  Ch.  (N.  Y.)  189.  5  L. 

Whatever   operation   is   allowed  to  ed.  349;  Black  v.  Woodman,  5  Redf. 

it  bevond  the  original  territory  of  its  (N.  Y.)   363;  Marshall  v.  Bresler,  1 

grant,   is    a    mere    matter   of   comity  How.  Pr.   (N.  S.)   (N.  Y.)  217;  Mc- 

which    everv   nation   is   at   liberty   to  Namara  v.  Dwyer,  7  Paige   (X.  Y.) 

yield  to  or  withhold,  according  to  its  239,  4  L  ed.  139,  32  Am.  Dec.  627n. 
own  policy  and  pleasure  with  refer- 


122  INDIANA    PROBATE   LAW.  §    84 

decedents  situated  in  this  state  when  there  is  no  conflicting  grant 
of  letters  here.^" 

The  assets  of  an  estate  in  the  hands  of  an  administrator  or 
executor  here  will  not  be  remitted  to  a  foreign  representative  at 
the  place  of  the  decedent's  domicile  where  there  are  claimants  for 
such  assets  in  this  jurisdiction.  Such  effects  are  to  be  distrib- 
uted among  the  creditors  of  the  decedent  according  to  the  laws 
of  the  state  of  the  administration,  and  not  according  to  the  laws 
of  the  decedent's  domicile.^^  But  the  distribution  to  heirs  and 
distributees  of  the  surplus  of  the  estate  remaining  after  payment 
of  debts  is  regulated  by  the  law  of  the  place  of  the  decedent's 
domicile  at  the  time  of  his  death. ^*  But  it  is  not  obligatory  upon 
courts  to  transfer  assets  to  the  domicile  for  distribution.^" 

§  84.  Allowance  of  claim  in  foreign  jurisdiction. — What  is 
the  effect  of  the  allowance  of  a  claim  by  adjudication  of  a  court 
of  foreign  jurisdiction  upon  assets  of  a  decedent  in  this  state? 
That  such  a  judgment  is  not  binding  or  conclusive  except  as  to 
assets  of  the  estate  wherein  such  allowance  is  made,  is  supported 
by  the  weight  of  authority.  In  one  case  the  court  says :  "A 
judgment  recovered  against  the  administrator  of  a  deceased  per- 
son in  one  state  is  no  evidence  of  debt  in  a  subsequent  suit  by  the 
same  plaintiff  in  another  state,  either  against  an  administrator, 
whether  the  same  or  a  different  person  appointed  there,  or  against 
any  other  person  having  assets  of  the  deceased."^" 

The  laws  and  courts  of  a  state  can  only  affect  persons  and 
things  within  their  jurisdiction.  The  judgment  in  such  a  case  is 
against  the  person  of  the  administrator  that  he  shall  pay  the 

'^  Brown  v.  Brown,  1  Barb.  Ch.  (N.  ^  Woerner's  Am.  Law  Admin.,  §  167. 

Y.)  189;  Black  V.  Woodman,  5  Redf.  "Johnson    v.    Powers,    139   U.    S. 

(N.  Y.)  363.  156,  35  L.  ed.  112;  Aspden  v.  Nixon, 

"Smith  V.  Union  Bank,  5  Pet.   (U.  4  How.   (U.  S.)  467,  11  L.  ed.  1059; 

S.)  518,  8  L.  ed.  212;  Borer  v.  Chap-  McLean  v.  Meek,   18  How.    (U.   S.) 

man,  119  U.  S.  587,  30  L.  ed.  532.  16,    15    L.    ed.    277;    Braithwaite    v. 

»*  Hall   V.    Pegram,   85   Ala.  522,   S  Harvey,  14  Mont.  208,  36  Pac.  38,  43 

So.  209,  6  So.  612 ;  Hutton  v.  Hutton,  Am.  St.  625,  27  L.  R.  A.  lOln ;  Low 

40  N.  J.  Eq.  461,  2  Atl.  280;  Tucker  v.  Bartlett,  8  Allen  (Mass.)  259. 
V.  Condy,  10  Rich.  Eq.  (S.  Car.)   12. 


§    85  FOREIGN    EXECUTORS   AND   ADMINISTRATORS.  12  T, 

debt  of  his  decedent  out  of  the  funds  committed  to  his  care;  the 
judgment  being  in  personam  and  not  ni  rem.  Consequently,  both 
as  to  the  administrator  and  the  property  confided  to  him,  a  judg- 
ment in  another  state  is  res  inter  aUos  acta.  It  cannot  even  be 
prima  facie  evidence  of  a  debt." 

It  may  therefore  be  taken  as  settled  doctrine  that  if  letters  of 
administration  are  granted  in  different  states  to  different  persons, 
or  even  to  the  same  person,  there  is  no  privity  between  the  dif- 
ferent administrations  in  respect  to  the  estate  coming  to  each 
administrator,  in  so  far,  at  least,  as  to  render  such  assets  liable 
for  a  claim  allowed  against  the  administrator  of  the  same  estate 
in  another  state,  and  that  therefore  a  judgment  against  the  ad- 
ministrator in  one  state  is  not  competent  testimony  to  show  a 
right  of  action  either  against  a  domiciliary  or  ancillary  admims- 
trator  in  another  state,  or  to  affect  assets  in  such  other  state.^« 

§85.    Same— Effect  of  on  real  estate.— While  ordinarily 
there  is  no  privity  between  two  administrators  in  different  states, 

'^  Stacv   V.   Thrasher,   6   How.    (U.  ^  Story  Conf.  La.-s    §  522;  Freem. 

S^   44  'l2  L    ed.  337;  McGarvey  v.  on    Judgments,    §  163;    ba    v     £-a- 

Darnall    134  II  .  367,  25  N.  E.   1005,  wards,  13  Allen   (Mass.)  48,  90  Am^ 

fo  L.  R.  A.  861;  Smith  v.  Goodrich.  Dec.    174n ;   Rosenthal   v.   Remck    44 

67  111    46   47  N.  E.  316;   Slauter  v.  111.  202;  McGarvey  v.  Darnell.  134  111. 

It    ^'''  rT'  7  Tnd  211  367,  25  N.  E.  1005,  10  L.  R.  A.  861. 

^t  aesw  11  V    SI  cU.  68  Iowa  110.  A  foreign  executor  or  administra- 

26  N   W   42.  the  question  turned  up-  tor  has  been  held  hable  to  be  sued 

on  the  admission  of  a  transcript  of  in    cases    -^ere    he    comes    mto     h 

the  record  of  the  proceedings  of  the  state  brmgmg  w.th  hxm  assets  o    the 

orphan's   court   in   Pennsylvania,   for  estate,    to    the    same    extent    as    he 

tl      purpose   of   establishing  a  claim  would    be    liable    accordmg    to  ^h 

against     the     administrator     by     the  laws   of   the  state  m  which  he  wa 

p'nLylvania    court    as     against    an  ^PP-"*^^"   ,Th"^'  ^  'iTforT  h 

auxiliary  administrator  in  Iowa,  and  is  chargeable  m  Alabama  for  aU    he 

the   court   held   it   was   not   evidence  assets  retamed  m  his  hands   or  whch 

and  had  no  binding  effect,  there  be-  he  has  disposed  of  out  o^th    course 

inc.  no  privitv  between  the   adminis-  of    his    admm.stration     and    the    dis 

rLrltCre' being  no  general  prin-  tributees  have  ^he  right  to  pursue  t 

ciple  o    law  under  which  it  could  be  assets  of  the  esta  e  as    0"^  ^^J^^^ 

he^ld  that   a  judgment  upon  the  one  ^^1^^ ^^ ^:^^ Z^T^ 

was  binding  upon  the  other.  ^^f  ^la   906,  42  Am.  Dec.  617. 


124  INDIANA    PROBATE   LAW.  §    85 

there  is  privity  between  the  administrator  and  the  heir  in  respect 
to  personal  estate  left  by  an  intestate;  yet  in  respect  to  the  real 
estate  of  which  such  intestate  may  have  died  seized  there  is  no 
privity.^" 

It  is  a  general  rule  of  law,  and  the  rule  which  prevails  in  this 
state,  that  the  administrator  takes  no  interest  in  the  real  estate  of 
his  decedent,  and  that  the  title  to  such  real  estate  vests  in  the 
heirs  at  once  on  the  death  of  the  intestate.  But,  except  such  as 
may  be  exempted  by  law,  all  the  lands  of  a  decedent  are  assets 
subject  to  use  in  the  payment  of  his  debts.  In  all  matters,  how- 
ever, relating  to  the  real  estate  the  lex  rei  sitc-e  controls,  for 
nothing  is  better  settled  than  that  the  law  of  the  place  where  real 
and  immovable  property  is  situated  exclusively  governs  in  re- 
spect to  the  rights  of  the  parties,  and  the  modes  of  transfer  and 
distribution." 

In  this  state  the  allowance  of  a  claim,  or  a  judgment  thereon, 
against  the  administrator  of  the  estate  does  not,  so  far  as  the 
decedent's  real  estate  is  concerned,  conclusively  establish  the  debt. 
It  is  binding  and  conclusive  so  far  as  personal  assets  in  the  hands 
of  the  administrator  are  concerned,  but  upon  an  application  by 
him  to  sell  real  estate  of  the  decedent  to  pay  such  debt  it  con- 
stitutes only  prima  facie  evidence  of  indebtedness,  and  the  heirs 
may  contest  it  upon  such  an  application.*^ 

But  where  a  claim  has  been  allowed,  or  judgment  taken  there- 
on, against  an  administrator  in  a  foreign  state,  such  judgment, 
in  an  application  in  this  state  to  sell  land  to  pay  debts,  is  not  even 
prima  facie  evidence  of  the  existence  of  indebtedness  against  the 
estate.*" 

="  Stone  V.  Wood,  16  111.  177;  Hop-  L.  R.  A.  403;  Freem.  on  Judgments, 

kins  V.  McCann,  19  111.  113;  Low  v.  §  564. 

Bartlett,  8  Allen  (Mass.)  259;  Freem.         "  Scherer    v.    Ingerman,    110    Ind. 

on   Judgments,   §    163;    McGarvey   v.  428,  11  N.  E.  8,  12  N.  E.  304;  Fiscus 

Darnall,   134  111.  Z(yl ,  25  N.  E.  1005,  v.  Robbins,  60  Ind.  100;  Cole  v.  La- 

10^  L.  R.  A.  861.  fontaine,  84  Ind.  446;  Dick  v.  Dum- 

"  Story   Conf.   Laws,   §  424 ;   Wun-  bauld,  10  Ind.  App.  508,  38  N.  E.  78. 
derle  v.  Wunderle,  144  111.  40,  ZZ  N.        *==  Ela  v.  Edwards,  13  Allen  (Mass.) 

E.    195,    19   L.    R.    A.    84;    Smith   v.  48,  90  Am.  Dec.   174n;   Rosenthal  v. 

Smith,  174  III.  52,  50  N.  E.  1083,  43  Renick,    44   111.    202;    Braithwaite   v. 


§    86  FOREIGN    EXECUTORS    AND    ADMINISTRATORS.  I25 

One  good  reason  for  this  rule  given  in  one  case  is  this :  "It  is 
quite  usual  for  a  person  to  own  property,  both  real  and  personal, 
in  many  different  states,  and  there  may  be  administration  in  each 
one  of  such  states.  If  the  allowance  of  a  claim  in  one  of  these 
states  afforded  evidence  to  establish  charges  against  the  property 
in  all  the  other  states,  it  would,  as  may  readily  be  seen,  be  pro- 
ductive of  fraud.  The  rule  contended  for  would  render  pre- 
carious the  title  of  heirs  to  the  lands  inherited  by  them,  and,  by 
shifting  the  burden  of  proof,  would  impose  upon  them  the  un- 
reasonable and  difficult  task  of  producing  testimony  to  show  the 
injustice  of  judgments  rendered  without  notice  to  them,  and  in 
states  other  tlian  that  of  their  domicile."" 

>J  86.  Right  to  sell  real  estate. — Whenever  any  executor  or 
administrator  shall  be  appointed  without,  and  there  shall  be  no 
executor  or  administrator  within  this  state,  the  testator  or  in- 
testate not  having  been,  at  the  time  of  his  death,  an  inhabitant 
thereof,  the  executor  or  administrator  so  appointed  may  file  an 
authenticated  copy  of  his  appointment  in  the  circuit  court  of  any 
county  in  which  there  may  be  real  estate  of  the  deceased;  after 
which  he  may  be  authorized  by  such  court  to  sell  real  estate  for 
the  payment  of  debts  or  legacies  in  the  same  manner  and  upon 
the  same  terms  as  in  the  case  of  an  executor  or  administrator 
appointed  in  this  state,  except  as  hereinafter  provided.**  It  is  an 
unquestioned  principle  of  general  law,  that  the  title  to  and  the 
disposition  of  real  estate  must  be  exclusively  subject  to  the  laws 
of  the  country  where  it  is  situated.*^  And  an  executor  or  admin- 
istrator, in  reference  to  the  sale  of  real  estate  of  his  decedent, 
derives  his  power  to  sell  from  the  law  of  the  place  where  he  at- 
tempts to  operate,  and  in  the  case  of  a  foreign  executor  or  ad- 
ministrator, if  local  laws  exist,  they  must,  at  least,  be  substan- 

Haney,  14  Mont.  208,  36  Pac.  38,  43        "  McGarvey  v.  Darnall,  134  111.  367, 
Am.  St.  625,  27  L.  R.  A.  lOln ;  Mc-     25  N.  E.  1005,  10  L.  R.  A.  861. 
Garvey   v.    Darnall,    134    111.    367,   25        "  Burns'  R.  S.  1908,  §  2881. 
N.  E.  1005,  10  L.  R.  A.  861.  *=  Kerr  v.  Moon,  9  Wheat.   (U.  S.) 

565,  6  L.  ed.  161. 


126  INDIANA    PROBATE   LAW.  §    87 

tially  complied  with,  before  he  can  secure  the  authority  to  sell 
lands  there. '"^ 

All  proceedings  by  a  foreign  executor  or  administrator,  in  re- 
spect to  the  sale  of  land,  shall  be  had  in  the  court  in  which  such 
authenticated  copy  of  his  appointment  shall  be  first  filed;  and 
such  court  shall  have  exclusive  jurisdiction  to  direct  the  sales  of 
any  lands  of  the  deceased  situated  in  any  county  in  this  state.*' 

§  87.  Same  continued. — From  a  careful  examination  and 
comparison  of  the  decisions,  the  rule  seems  to  be,  that  suits  may 
be  maintained  by  a  foreign  executor  or  administrator,  in  all 
matters  relating  to  the  personal  property,  debts,  and  choses  in 
action  of  the  deceased,  and  that  an  authenticated  copy  of  his 
appointment  is  not  an  absolute  prerequisite  to  such  suit,  but  such 
copy  is  filed  in  court  simply  as  evidence  of  the  appointment  of 
such  executor  or  administrator;  while  in  proceedings  relating  to 
the  sale  of  the  real  estate  of  the  deceased  by  such  foreign  execu- 
tor or  administrator,  it  is  necessary,  for  the  purpose  of  giving  the 
court  jurisdiction  in  such  proceedings,  that  an  authenticated  copy 
of  the  appointment  of  such  executor  or  administrator  should  be 
filed  in  the  proper  court  prior  to  the  commencement  of  the  pro- 
ceedings to  sell  such  real  estate.*^ 

A  foreign  executor  or  administrator,  desiring  to  sell  real  estate 
of  his  decedent  in  this  state,  must,  after  filing  a  duly  authenti- 
cated copy  of  his  appointment  in  the  court  in  which  the  action  is 
brought,  proceed  regularly  by  petition  and  notice  as  is  required 
of  resident  executors  or  administrators.*® 

A  failure,  however,  to  file  the  authenticated  copy  of  his  ap- 
pointment as  required  by  this  statute  does  not  render  a  sale  of 
land  made  by  a  foreign  executor  or  administrator  void.  It  is  an 
irregularity,  but  is  not  such  an  error  as  deprives  the  court  of 

*' Lucas  V.  Tucker,  17  Ind.  41.  228;   Upton  v.   Adams   27   Ind.   432; 

*■  Burns'  R.  S.  1908,  §  2885.  Rapp  v.  Matthias,  35  Ind.  Z2>2 ;  Naylor 

"Jelly  V.  Stevens,  4  Ind.  510;  Mat-  v.  .Moody,  2  Blackf.   (Ind.)  247. 

lock  V.   Powell,    14  Ind.   378 ;   Jeffer-        "  Rapp  v.  Matthias,  35  Ind.  332. 

sonville  R.  Co.  v.  Hendricks,  26  Ind. 


§    88  FOREIGN    EXECUTORS   AND   ADMINISTRATORS.  12/ 

jurisdiction,  and  its  order  made  in  such  case  is  not  subject  to 
collateral  attack.^** 

§  88.  Same — Bond  required. — Whenever  it  shall  appear  to 
the  court  that  such  foreign  executor  or  administrator  is  bound, 
with  sufficient  surety,  in  the  state  or  country  in  which  he  was 
appointed,  to  account  for  the  proceeds  of  such  sale,  for  the  pay- 
ment of  debts  and  legacies,  and  that,  by  the  laws  of  such  state  or 
country,  his  sureties  are  liable  for  the  proper  accounting  for  such 
proceeds,  and  a  copy  of  such  bond,  duly  authenticated,  shall  be 
filed  in  such  court,  no  further  bond  shall  be  required  of  him 
here.  If,  however,  he  be  not  thus  sufficiently  bound,  he  shall 
give  bond  in  said  court  as  is  required  of  executors  or  adminis- 
trators appointed  in  this  state." 

"^  Bailey    v.    Rinker,    146    Ind.    129,        "  Burns'  R.  S.  1908,  §  2884. 
45  N.  E.  38. 


CHAPTER    VI. 

BONDS  OF  EXECUTORS  AND  ADMINISTRATORS. 

§89.  The  subject  generally.  §99.     Bonding  companies  as  sureties. 

90.  What  fund  primarily  secured.  100.  Bond  required  on  application  to 

91.  First  or  general  bond.  sell  real  estate. 

92.  What  this  bond  covers.  101.  Such    bond    a    prerequisite    to 

93.  Separate  bonds.  sale. 

94.  To  whom  bonds  payable.  102.  Approval  and  custody  of  bonds. 

95.  Bond  valid,  when.  103.  New  bond  required  on  destruc- 

96.  When    additional    bond    may   be  tion  of  old. 

ordered.  104.  Validity  not  aflfected. 

97.  Liability    of    sureties;    effect    of        105.  Release  of  sureties. 

new  bond.  106.  Statute  remedial. 

98.  When    principal    liable    in    some        107.  Bonds     of     foreign     executors, 

other  capacity.  etc. 

§  89.  The  subject  generally. — Administrators  and  execu- 
tors, being-  trustees  of  the  funds  which  come  to  their  hands  in  the 
settlement  of  the  estates  entrusted  to  them,  are  generally  re- 
quired to  furnish  some  kind  of  security  for  the  protection  of 
those  who  are  ultimately  entitled  to  such  funds.  The  giving  of  a 
bond  by  an  administrator,  prior  to  entering  upon  the  duties  of  his 
office,  was  the  usual  practice  of  the  English  courts  from  early 
times,  although  the  executor  was  not  generally  obliged  to  give 
such  security,  as  he  was  selected  by  the  testator,  who  was  pre- 
sumed to  have  adjudged  him  fit  for  the  office  without  security. 
In  the  United  States,  however,  the  executor,  as  well  as  the  ad- 
ministrator, is  regarded  as  in  the  nature  of  a  trustee,  and  it  is 
the  rule  in  most  of  the  states  that  the  executor  must  give  bond  as 
well  as  the  administrator,  although  the  rule  is  not  invariable. 
In  those  states  where  the  executor  is  not  bound  by  law  to  give 
bond,  he  may  be  required  by  the  testator  in  his  will  to  do  so ;  and 
where  this  is  done  the  probate  court  will  not  grant  him  letters 
until  a  bond  is  filed. ^ 

'Duncumban   v.    Stint,    1    Ch.    Ca5.     121;    Rous    v.    Noble,    2    Vern.    249; 

128 


§    89  BONDS    OF    EXECUTORS    AND    ADMINISTRATORS.  1 29 

In  this  state  there  is  no  exception,  and  no  letters  will  be 
granted  to  either  an  executor  or  administrator  until  he  gives 
bond.  Nor  can  an  executor  be  excused  from  giving  bond  by  any 
provision  in  the  will  excusing  him  from  so  doing. 

The  giving  of  an  administration  bond  does  not  relieve  an 
executor  or  administrator  from  a  personal  liability  for  any 
devastavit  of  the  estate.  The  remedy  upon  the  bond  is  merely 
cumulative,  and  in  the  nature  of  additional  security." 

§  90.  What  fund  primarily  secured. — The  personal  prop- 
erty only  of  a  decedent  is  the  fund  to  be  secured  by  the  bond 
given  at  the  time  letters  are  issued.  The  means  for  the  payment 
of  the  debts  of  deceased  persons  are  divided  into  two  funds, 
primary  and  secondary.  The  primary  fund  consists  of  the  per- 
sonal property  of  the  deceased  and  such  real  estate  as  may  be 
directed  by  the  will  to  be  sold ;  the  secondary  consists  of  the  de- 
cedent's real  estate  generally.  It  is  not  presumed,  when  letters  of 
administration  are  granted,  that  the  secondary  fund  will  have  to 
be  resorted  to,  and,  therefore,  such  fund  is  not  considered  in 
issuing  the  letters  and  taking  the  original  bond.  The  primary 
fund  only  is  taken  into  account,  and  such  bond  is  given  simply  to 
secure  the  proper  application  of  that  fund.  If  it  becomes  neces- 
sary, in  the  settlement  of  the  estate,  for  the  administrator  to 
resort  to  this  secondary  fund,  he  assumes  an  additional  trust  and 

Sullivan's  Will,  1  Tuck.   (N.  Y.)  94;  vindicate  the   lawful   inheritance  and 

Crosswell  Extrs.  &  Admin.,  §  83.  dower  to  the  widow  and  next  of  kin, 

In   Woemer's    Am.    Law   Adminis-  on  the  other,  and  so  appropriate  and 

tration,  §  249,  is  given  the  origin  of  efficient  in  accomplishing  this  desired 

the    law    requiring    administrators    to  end  is  the  administration  bond  consid- 

give  bond.    It  reads  as  follows :    "The  ered  to  be,  that  not  a  single  state  has 

English  statute,  requiring  bond  to  be  ever  ventured  upon  the  experiment  of 

given  to  the  ordinary  upon  commit-  substantially  changing  the  law  in  this 

ting  administration   of  the  goods   of  respect.    The  form   of  such   a  bond, 

any  person   dying  intestate,   is   incor-  enacted,    'anno    vicesimo    secundo    et 

porated    into    the    statutes    of    every  tertio  Caroli  II,'  corresponds  substan- 

state  in  the  Union.    So  great  has  at  tially    to    the   form    required   by    our 

all  times  been  the  anxiety  of  legisla-  modern  statutes,  even  to  the  'two  or 

tors    and    judicial    tribunals    in    this  more  able  sureties'  demanded." 

country  to  protect  the  just  demands  "Thomas  v.  Chamberlain,  39  Ohio 

of  creditors  on  the  one  hand,  and  to  St.  112. 

9— Pro.  Law. 


130  IMMA.NA     I'ROHATK    LAW.  §    9I 

becomes  burdened  witb  new  duties,  and  is  re(|nired  to  ^i\e  a  new 
bond  to  cover  the  new  trust,  and  the  two  trust  funds  and  the 
bonds  given  for  their  proper  appHcation  are  kept  distinct  and 
separate,  and  the  sureties  in  tlie  several  bonds  are  hable  <Mily  for 
the  respective  funds  such  bonds  were  executed  to  secure."' 

The  trust  of  an  executor  or  aihninislrator  under  his  orij^dnal 
appointment  and  bond  extends  only  in  the  duties  imposed  upon 
him  by  this  section  of  the  statute,  and  relates  onlv  to  the  personal 
estate  of  the  decedent,  unless  the  wih  (hrects  the  sale  of  real 
estate,  when  the  proper  apj)lication  of  the  proceeds  of  the  sale  of 
such  real  estate  is  also  seemed  by  the  orij^dnal  bond.  Anv  bleach 
of  trust  in  relation  to  either  fund  is  covered  by  such  bond.' 

l)Ut  the  general  bond  recpiired  of  an  ruhninistrator  niidei-  this 
statute  does  not  extend  to  iiis  acts  or  omissions  in  inaUin;.,^  and 
accounting!:  for  sales  of  his  intestate's  real  estate,  but  only  to  the 
manai;cmciil  and  (hsposal  of  the  person.al  estate.** 

§91.  First  or  general  bond. —  ICvery  person  appointed  ex- 
ecutor, administrator  with  the  will  annexed,  or  administrator, 
before  receiving  letters  shall  execute  a  se|)arate  bond,  with  sufli- 

"Worgung  V.   Ciipp,  ^1    in<l.   11'),  H^  of  his  ditlics  as  Iriistcc.    It    li.ippnicd 

Am.  Dec.  34.3;  PoUcr  V.  State,  2.?  1 11(1.  in    this   case    thai    the    trustee    f)f   the 

607;    Joiner     v.     Sanders,    5     IJlackf.  I  rust  created  by  the  will  was  ;ilso  ap- 

(Ind.)   37H;  Warwick  v.  Stale,  5   Ind.  pointed    executor   of    llic    will;    Imt    if 

350.  ^oiiic    jpcrson    other    tii.in    the    tnislee 

*WorRanjf  v.  Clipp,  21    Ind.   IT',  M  ii.id  |,een  appointed  execiilor,  it  woidd 

Am.  Dec.  343;  Reno  V.  'I'ysf'ii.  24  IikI.  h.irdly    be   claimed    that   the   bond   of 

56.    In   the  case  of  i finds   v.    Hinds,  the  executor  would  or  could  be  con- 

85  Ind.  312,  the  court,  in  considering  slrued    as    securing   ibe    faithful    dis- 

thc  question  of  the  liability  of  an  ex-  char>.{e  of  the  trustee's  duties." 
ccutor    on    his    general    Ixmd,    when         In  the  case  of  Lane  v.  State,  24  Ind. 

such  executor  was  also  appointed  by  421,    it    was   held    that,    where    it    a|)- 

the    will    of    :i    trustee    to    execute    a  peared  that  a  second  bond  was  given 

trust  created  by  the  will,  said:    "We  (o  cover  the  same  liabilities  as  were 

are   not   convinced   by   this  course   of  covererl  by  a  prior  bond,  the  sureties 

reasoning  that  the  bond  of  an  execti-  u])fin   the  second  boiul   woidd   not    be 

tor,  given   to  secure-  the  faithful   (lis-  liable  until  the  remedy  u|)on  the  first 

charge    of    bis     duties     as    cxccutr)r,  bond  had  been  exhausted, 
ought  to  be  or  cnn   be  constrnefl   as        "State     v.     Cloud,     04     Ind.     174; 

conrlitioned   for  the  faithful  discharge  Kogcrs  v.  State,  26  Ind.  ,Api>.   144,  S') 

N.  E.  334. 


§    <J2  BONDS    or    EXECUTORS    AND    ADMINISTRATORS.  I3I 

cicnt  resident  freehold  sureties,  to  be  api)roved  by  the  proper 
clerk  or  court,  jtjintly  ruul  severally  bound  in  a  penalty  payable  to 
the  state  of  Indiana  of  not  less  than  double  the  value  of  the  per- 
sonal estate  to  be  administered  (and  in  case  real  estate  is  to  be 
sold  by  the  terms  of  a  will,  also  doul)le  the  value  of  such  real 
estate),  conditioned  that  he  will  faithfully  discharge  his  duties  as 
such  executor  or  administrator,  and  shall  take  and  subscribe  an 
oath  or  ariirmation  that  he  will  faithfully  discharge  the  duties  of 
his  trust  according  to  law  ;  whicii  oath  or  afiuniation,  attested  by 
the  clerk,  shall  be  filed  and  recorded  as  part  of  the  proceedings  of 
the  estate.  And  such  clerk  or  court  shall  examine,  under  oath, 
such  i)erson,  or  any  other  i)erson,  touching  the  value  of  such  per- 
sonal estate;  and  shall  also  examine  such  sureties,  under  oath,  as 
to  the  value  of  property  they  own  more  than  their  indebtedness; 
whicli  oaths  shall  be  taken  and  subscribed  by  such  person  or  per- 
sons .md  such  sureties,  respectively,  and  filed  as  a  part  of  the  ])ro- 
ceedings  in  such  estate." 

At  common  law  :ni  executor  was  not  re(|uired  to  give  bond, 
but  the  statute  under  consideration  changes  this  mle,  and  letters 
testamentary  should  not  be  issued  to  an  executor  without  a  suffi- 
cient bond  first  being  placed  on  file  in  the  court  from  which  the 
letters  issue,  and  the  surety  on  such  bond  is  not  liable  for  the 
acts  of  the  executor  prior  to  the  making  of  the  bond.^ 

§  92.  What  this  bond  covers. — The  general  l)ond  provided 
in  this  statute  does  not  cover  the  rents  and  profits  arising  from 
the  real  estate  of  the  decedent.  Such  rents  and  profits  go  to  the 
heirs  with  the  land." 

This  bond  is  reciuircd  in  all  cases  of  administration,  be  they 
general,  or  limited  and  si>ccial.  and  the  form  of  the  bond  should 
vary  to  fit  each  particular  case." 

The  rule  is  to  date  the  order  of  appointment,  bond  and  letters 
of  administration,  all  on  the  same  day,  so  when  an  administrator 
h:is  fully  qualified  by  giving  bond  as  required  by  the  statute,  the 

•  Rums'  R.  S.  1908.  §  2759.  •  State   v.   Barrett,   121    Iiul.  92,  22 

'State   V.    Hoofl.   7   Blackf.    (Ind.)     N.  E.  969. 
1J7.  •Schouler  Extrs.  &  Admrs.,  §   140. 


132  INDIANA    PROBATE   LAW.  §   93 

order  of  court  may  be  considered  his  sufficient  appointment, 
whether  he  receives  his  formal  letters  or  not  at  that  lime;  they 
are  considered  as  ready  for  delivery/" 

A  surety  who  signs  a  bond  conditionally  must  retract  his  sig- 
nature before  the  bond  is  returned  to  court,  and  has  been  acted  on 
by  the  court  and  innocent  parties. ^^ 

A  bond  given  by  one  acting  under  a  void  grant  of  administra- 
tion, while  it  can  derive  no  validity  from  the  statute,  may  be 
good  as  a  common  law  bond.^- 

Under  this  statute  the  bond  therein  required  is  a  prerequisite 
to  the  issuance  of  either  letters  testamentary  or  of  administra- 
tion. 

The  amount  of  security  required  upon  the  bond  should  be  cal- 
culated upon  the  value  of  the  property  to  be  administered  in  the 
state. ^^  But  property  of  the  decedent  which  has  been  fraudu- 
lently transferred  need  not  be  taken  into  consideration  in  fixing 
the  amount.^* 

The  sureties  should  each  be  worth,  at  least,  the  penalty  fixed  in 
the  bond,  over  and  above  all  debts,  and  property  exempt  from 
execution.^" 

Such  general  bond  ordinarily  extends  only  to  the  management 
of  the  personal  property,  and  does  not  extend  to  acts  or  omis- 
sions in  making  and  accounting  for  sales  of  real  estate. ^° 

§  93.  Separate  bonds. — This  statute  requires  a  separate 
bond  for  each  executor  or  administrator;  and  where  a  joint  bond 
has  been  given  by  two  or  more  executors  or  administrators,  such 
bond  is,  in  legal  effect,  the  separate  bond  of  each,  and  not  the 
joint  bond  of  all-;  and  the  sureties  therein  are  the  sureties  of  each 
separately,  and  not  of  all  jointly,  in  their  separate  bond,  and  not 

"State  V.  Price,  21  Mo.  434.  "Lewis  v.  Grognard,  17  N.  J.  Eq. 

"  Canal  &  Bank  Co.  v.  Brown,  4  La.  425. 

Ann.  545;  Wolff  v.  Schaeffer,  74  Mo.  "In  re  Peck,  3  Dem.   (N.  Y.)  548. 

154.  "Sutton  V.  Weeks,  5  Redf.  (N.  Y.) 

"McChord   V.  Fisher,    13   B.   Mon.  353. 

(Ky.)    193.  '^  Rogers  v.  State,  26  Ind.  App.  144, 

59  N.  E.  334. 


§    94  BONDS   OF   EXECUTORS   AND   ADMINISTRATORS.  1 33 

in  their  joint  bond."  The  rule  in  this  state  was  once  different.^^ 
But  these  cases  are  expressly  overruled  in  the  decision  of  the 
court  in  the  case  of  State  v.  Wyant,  67  Ind.  25. 

One  co-executor  or  co-administrator  is  not  responsible  for  the 
assets  of  his  decedent's  estate  received  by  the  other,  but  each  is 
held  responsible  only  for  the  assets  received  by  him ;  and  he  can- 
not be  held  liable  for  any  default  of  such  co-executor  or  admin- 
istrator/® unless  the  waste,  devastavit,  mismanagement  or  de- 
fault of  the  other  was  with  the  knowledge,  consent  or  conniv- 
ance of  such  co-executor  or  administrator.-'' 

The  bond  should  be  separate  and  several  as  to  the  entire  pen- 
alty, but  it  has  been  held  that  a  bond  which  divides  the  penalty 
among  the  sureties,  making  each  liable  for  a  certain  specified  part 
of  such  penalty,  is  not,  for  that  reason,  void,  though  such  bonds 
should  not  be  favored  by  courts.-^  Xor  should  the  giving  of 
several  and  separate  bonds  instead  of  a  single  bond  be  permit- 
ted." 

§  94.  To  whom  bonds  payable. — The  bonds  of  executors 
and  administrators  must  be  made  payable  to  the  state  of  Indiana, 
and  shall  be  for  the  use  of,  and  in  trust  for,  the  person  or  persons 
concerned."  The  statute  requiring  executors  and  administrators 
to  give  bond  with  surety,  imposes  upon  them  no  new  duties,  but 
is  only  an  additional  remedy  to  those  interested  in  the  estate,^* 
and  persons  so  interested  in  such  estate  may,  for  any  waste  or 
maladministration  on  the  part  of  such  executor  or  administrator, 
maintain  an  action  upon  any  such  bond." 

"  State,  ex  rel.,  v.   Wyant,  67  Ind.  "  Manz  v.  Oakley,  120  N.  Y.  84,  24 

25 ;  Hurlburt  v.  State,  ex  rel.,  71  Ind.  N.  E.  306,  9  L.  R.  A.  223n ;  Osborn, 

154.  Estate  of,  87  Cal.  1,  25  Pac.  157,   U 

"  Braxton  v.  State,  ex  rel.,  25  Ind.  L.  R.  A.  264. 

82 ;  Prichard  v.  State,  ex  rel..  34  Ind.  ^  Baldwin    v.     Standish,     7     Cush. 

137;  Moore  v.  State,  ex  rel.,  49  Ind.  (Mass.)  207. 

558.  "  People  v.  Lott,  27  111.  215. 

"Call   V.    Ewing,    1    Blackf.    (Ind.)  =^  Songer  v.    :Manwaring,    1    Blackf. 

301;  Ray  v.  Doughty,  4  Blackf.  (Ind.)  (Ind.)  251. 

115;    Davis    v.    Walford,   2    Ind.   88;  =*  Eaton     v.     Benefield,     2     Blackf. 

Braxton  v.  State,  ex  rel.,  25  Ind.  82;  (Ind.)  52. 

Moore  v.  State,  ex  rel.,  49  Ind.  558.  "*  Persons  v.  Crane,  2  Ind.  157. 


134  INDIANA    PROBATE    LAW.  §    95 

The  oaths  required  by  this  section  of  the  statute  should  be 
administered  by  the  cleric  of  the  court  in  which  the  bond  is  filed, 
but  the  failure  to  have  them  so  administered,  while  erroneous, 
does  not  render  the  administration  void."® 

The  purpose  of  the  bond  is  to  secure  a  proper  administration 
and  distribution  of  the  trust  fund,  and  it  is  doubtful  if  an  admin- 
istrator or  the  sureties  would  be  permitted  to  escape  liability  on  a 
bond  that  by  mistake  had  been  made  payable  to  some  one  other 
than  the  state  as  provided  in  the  statute.  The  courts  would  not 
be  strict  nor  technical  in  such  a  case,  and  if  tlie  bond  should  be 
made  payable  to  one  or  more  of  the  interested  parties,  or  to  any 
other  person,  it  should  be  held  that  the  obligee  in  the  bond,  who- 
ever it  might  be,  was  a  trustee  for  whoever  might  be  interested 
in  enforcing  the  penalty  of  the  bond.-' 

§  95.  Bond  valid,  when. — A  bond  is  valid,  and  may  be  en- 
forced against  the  obligors  therein,  although  no  penalty  is  men- 
tioned in  such  bond,  and  although  the  clerk  has  failed  to  approve 
it."®     Persons  who,  upon  the  request  of  an  administrator,  sign 

'"  Pickens  v.  Hill,  30  Ind.  269.  made    to    an   administrator   de   bonis 

"  A  bond  made  payable  to  the  non,  instead  of  to  an  administrator  de 
"Governor"'  instead  of  the  state  is  not  bonis  non  with  the  will  annexed,  the 
void.  Sikes  v.  Truitt,  4  Jones  Eq.  (N.  surety  was  held.  Newberger  v.  Fin- 
Car.)  361;  Johnson  v.  Fuquay,  1  ney,  17  Ohio  C.  C.  215. 
Dana  (Ky.)  514;  Farley  v.  McCon-  ==*  State,  ex  rel.,  v.  Britton,  102  Ind. 
nell,  7  Lans.  (N.  Y.)  428.  214,  1  N.  E.  617.    By  §  1278,  Burns' 

If  made  to  the  "county,"  instead  of  R.    S.    1908,    it   is   provided    that    no 

"people."     Bay    County   v.    Brock,   44  bond,  recognizance  or  written  under- 

Mich.  45,  6  N.  W.  101.  taking  taken  by  any  officer  in  the  dis- 

Or  "people  of  the  state"  instead  of  charge    of    the    duties    of    his    office, 

state.     Tevis  v.   Randall,  6  Cal.   632,  shall   be   void   for   want  of   form   or 

65  Am.  Dec.  547.  substance  or  recital  or  condition.    In 

But  where  the  testator  was  de-  placing  a  construction  upon  this  sec- 
scribed  as  James,  when  it  should  tion  the  courts  have  held  that  it  has 
have  been  Joseph,  the  sureties  were  the  effect  to  render  all  bonds  or  ob- 
not  held.  McGovney  v.  State,  20  Ohio  ligations  taken  by  officers  in  the  dis- 
93.  charge  of  their  official  duties  binding 

Likewise    where   made    to    the    Su-  upon  the  persons  executing  such  ob- 

preme  Court  instead  of  district  court,  ligations,  no  matter  how  defective  in 

Myres  v.  Parker,  6  Ohio  St.  501.  form.   A  few  of  such  cases  are  cited. 

But  where  the  bond  by  mistake  was  Koeniger  v.  Creed,  58  Ind.  554 ;  Bugle 


95 


BONDS    OF    EXECUTORS    AND    ADMINISTRATORS. 


135 


his  official  bond  as  co-sureties  in  the  presence  of  the  clerk  without 
inquiry  or  explanation,  but  expecting  the  bond  to  be  signed  by 
others  whose  names  were  therein  inserted  as  co-sureties,  and  the 
clerk,  without  waiting  for  further  signatures,  approves  and  files 
such  bond,  become  liable  thereon,  and  such  bond  is  valid,  and 
binding  upon  the  persons  who  so  sign  it.-® 

The  bond,  when  properly  executed,  will  be  valid  although  it 
may  never  have  been  formally  approved.  If  the  bond  is  executed 
and  filed  in  the  court  making  the  appointment,  its  approval  will 
be  presumed.^" 

And  such  bond  will  be  valid  where  the  amount  of  the  penalty 
has  been  omitted  therefrom.^' 


V.  Myers,  59  Ind.  11 ;  Fee  v.  State,  ex 
rel.,  74  Ind.  66;  Faurote  v.  State,  ex 
rel..  110  Ind.  463,  11  N.  E.  472. 

=»  State  V.  Gregory,  119  Ind.  503,  22 
N.  E.  1.  In  the  case  of  State,  ex 
rel.,  V.  Pepper,  31  Ind.  76,  it  is  held 
that  when  a  bond  has  been  signed  by 
a  surety  and  delivered  to  the  princi- 
pal obligor  upon  the  condition  that 
others  not  named  in  the  instrument 
shall  sign  before  it  is  delivered  to  the 
obligee,  and  it  is  delivered  without 
such  signatures  being  obtained,  and 
such  obligee  has  no  notice  of  such 
conditions,  the  surety  so  signing  will 
be  bound.  See,  also.  State,  ex  rel.,  v. 
Garton,  11  Ind.  1,  2  Am.  Rep.  315. 

In  the  case  of  State  v.  Potter, 
63  Mo.  212,  21  Am.  Rep.  440, 
there  is  a  very  extended  review  of 
the  authorities  as  to  the  effect  of  the 
delivery  of  a  bond  contrary  to  an 
agreement  made  with  a  surety  at  the 
time  of  his  signing,  the  bond  in  such 
case  being  that  of  a  guardian,  and  the 
court,  in  concluding  its  opinion,  said: 
"Again,  it  concerns  the  state,  that  the 
heritage  of  the  helpless,  confided  to 
the  protection  of  her  courts,  should 
not  suffer  detriment.  The  conse- 
quences would  be   fraught   with   dis- 


aster, and  it  would  be  subversive  of 
the  plainest  dictates  of  public  policy 
if  sureties  in  such  cases  were  per- 
mitted, by  means  of  some  'ill-remem- 
bered conversation,'  or  some  occult 
understanding,  never  disclosed  but 
under  the  shadow  of  impending  loss, 
to  escape  liabilities  which  their  own 
solemn  deed  and  recorded  specialty 
announces  them  to  have  incurred." 

"Bank  v.  Dandridge,  12  Wheat. 
(U.  S.)  64,  6  L.  ed.  552;  Brown  v. 
Weatherby,  71  Mo.  152;  Cameron  v. 
Cameron,  15  Wis.  1,  82  Am.  Dec.  652. 
A  bond  given  by  one  acting  under  a 
void  grant  of  administration,  while 
deriving  no  validity  from  the  statute, 
may  be  good  as  a  common-law  bond. 
McChord  v.  Fisher,  13  B.  Hon.  (Ky.) 
193;  State  v.  Creusbauer,  68  Mo.  254. 
But  the  fact  that  an  administrator's 
appointment  was  improper,  will  not 
exempt  him  or  his  sureties  from  lia- 
bility on  his  bond  to  parties  interested 
after  he  has  acted  under  the  grant  of 
administration.  Cleaves  v.  Dockray, 
67  Me.  118;  Shaker's  Appeal,  43  Pa. 
St.  83,  82  Am.  Dec.  552. 

"State  V.  Britton,  102  Ind.  214,  1 
N.  E.  617.  The  omission  of  the 
proper  number  of  sureties,  or  the  ac- 


136  INDIANA    PROBATE   LAW.  §    95 

The  acceptance  of  an  insolvent  surety  will  not  invalidate  the 
appointment  made  upon  such  bond  nor  affect  in  any  way  the 
validity  of  the  administrator's  acts;  nor  will  the  fact  that  the 
bond  is  for  an  amount  less  than  the  law  requires  affect  the  valid- 
ity of  the  administration/^ 

A  bond  conditioned  for  the  discharge  of  his  duties  "according 
to  law"  binds  the  obligor  to  the  observance  of  all  duties  imposed 
by  the  law  at  any  time  during  the  continuance  of  his  office, 
whether  such  laws  were  enacted  before  or  after  the  execution  of 
the  bond.^^ 

A  bond  is  valid  and  effective  although  the  conditions  set  out  in 
it  are  not  in  strict  accord  with  the  statute ;  and  though  there  may 
be  stipulations  and  conditions  in  it  in  excess  of  what  the  statute 
requires.^* 

And  though  the  statute  requires  two  or  more  sureties,  yet  a 
bond  is  not  rendered  invalid  if  signed  by  only  one  surety." 

Any  private  arrangement  between  the  principal  and  his  sure- 
ties can  have  no  effect  upon  the  validity  of  a  bond  after  its  ac- 
ceptance and  approval. ^"^ 

The  bond  of  an  executor  given  for  the  faithful  discharge  of 
his  duties  as  executor  cannot  be  construed  as  conditioned  for  the 
faithful  discharge  of  his  duties  as  trustee  under  the  will." 

ceptance    of   an    insolvent    surety,    or  "  Dawson  v.   State,  38  Ohio  St.   1. 

even  the  entire  absence  of  sureties  al-  "  Probate  Court  v.    Strong,   27   Vt. 

together   will   not,   in   the   absence   of  202,  65  Am.  Dec.    190;  Lanier  v.   Ir- 

statute,   make  the  grant   of  adminis-  vine,  21  Minn.  447;  Holbrook  v.  Bent- 

tration  absolutely  void.    Herriman  v.  ley,  32  Conn.  502;  Newton  v.  Cox,  l(i 

Janney,   31   La.   Ann.  276;    Mumford  Mo.    352;    Woods    v.    State,    10    Mo. 

V.  Hall,  25  Minn.  347.    Omissions  are  698;  Ordinary  v.  Cooley,  30  N.  J.  L. 

sometimes    supplied    in   the   blank   by  179. 

construing  the  decree  of  appointment  "=  Steele   v.    Tutwiler,    68   Ala.    107 ; 

and  the  bond  together.    State  v.  Price,  Slagle  v.  Entrekin,  44  Ohio   St.  637, 

15   Mo.   375.    And   a   bond  has   been  10  N.  E.  675. 

held    valid    although    it    omitted    the  ^  Brown  v.  Davenport,  l(i  Ga.  799; 

conditions  of  its  execution.    Rose   v.  Cohea  v.  State,  34  Miss.  179. 

Winn,  51  Tex.  545.  '^  Hinds    v.    Hinds,    85    Ind.    312; 

'=  Herriman  v.  Janney,  31  La.  Ann.  Coggeshall  v.  State,  112  Ind.  561,   14 

276;   Slagle  v.  Entrekin,  44  Ohio  St.  N.  E.  555. 
637,  10  N.  E.  675 ;  Mumford  v.  Hall, 
25  Minn.  347. 


§    g6  BONDS   OF   EXECUTORS   AND   ADMINISTRATORS.  1 37 

Neither  the  office  of  administrator,  nor,  in  cases  where  an 
executor  is  required  to  give  bond,  that  of  executor,  can  be  re- 
garded as  filled  until  the  administration  bond  is  actually  given, 
and  neither  can  act  until  he  has  qualified  by  giving  the  neces- 
sary bond  and  taking  the  oath  of  office.^® 

§  96.  When  additional  bond  may  be  ordered. — There  is.  in 
probate  courts,  inherent  power  to  compel  new  and  additional 
security  to  be  given  by  executors  and  administrators  whenever 
justice  and  the  interest  of  the  estate  require  it;  and  whenever  it 
becomes  apparent  to  such  court  that  the  sureties  of  an  adminis- 
tration bond  have  become  insolvent,  or  that  the  penalty  in  the 
bond  is  in  too  small  an  amount,  or  that  the  bond  is  for  any  cause 
insufficient,  the  court  has  the  power  to  compel  new  and  addi- 
tional bond.«° 

Such  power,  however,  is  now  expressly  conferred  upon  pro- 
bate courts  in  most,  if  not  all,  the  states  by  statute. 

The  court,  having  jurisdiction  of  the  administration  of  an 
estate,  may  require,  from  the  executor  or  administrator  of  the 
estate,  additional  security  when  deemed  necessary  for  the  safety 
of  the  estate.''"  The  exercise  of  this  power  is  largely  within  the 
discretion  of  the  court,  and  may  extend  to  the  requiring  of  a  new 
and  additional  bond  or  to  additional  sureties  upon  bonds  already 
executed.  When  by  order  of  the  court  such  new  or  additional 
bond  or  other  and  additional  sureties  are  required,  two  days' 
time  shall  be  allowed  therefor;  and  if  such  order  be  not  compHed 

"  Woerner  Am.  Law  Admin.,  §  253.  to  find  any  law  that  justified  the 
*•  Woerner  Am.  Law  Admin.,  §  254.  court  in  requiring  the  appellant  to 
"Pea  V.  Pea,  35  Ind.  387.  In  this  give  bond  to  secure  the  judgment, 
case,  wherein  it  was  sought  to  com-  and  in  default,  that  an  attachment 
pel  an  administrator  to  charge  him-  should  issue,  not  against  him  person- 
self  with  personal  property  belonging  ally,  but  against  his  property.  The 
to  the  estate  which  it  was  alleged  he  court  of  common  pleas  has  the  power 
failed  and  refused  to  charge  himself,  to  require  an  administrator  to  give 
the  court  in  considering  the  power  of  an  additional  bond  in  certain  cases, 
the  lower  court  to  require  such  ad-  but  that  would  be  in  another  and  dif- 
ministrator  to  give  an  additional  ferent  proceeding." 
bond,   said :     "We   have  been   unable 


138  INDIANA    PROBATE   LAW. 


97 


with  in  that  time  the  court  shall  remove  such  executor  or  admin- 
istrator and  supersede  his  letters.*^ 

The  fact  that  the  property  of  the  sureties  is  not  in  the  aggre- 
gate equal  to  the  value  of  the  estate  in  the  hands  of  the  adminis- 
trator or  that  one  or  more  of  the  sureties  has  died,  or  has  be- 
come insolvent,  is  ground  sufficient  for  requiring  of  the  adminis- 
trator additional  security.-"  And  the  administrator  should  al- 
ways be  required  to  furnish  a  new  bond  to  cover  newly  discovered 
property  of  the  decedent,  not  estimated  in  fixing  the  security  of 
the  first  bond." 

At  any  time  when  the  existing  security  seems  to  the  court  to 
be  inadequate,  it  may  require  additional  bonds  to  be  given :  and 
if  not  given  within  the  time  required  by  the  court  such  e.xecutor 
or  administrator,  so  failing,  should  be  removed."** 

An  order  requiring  an  administrator  to  give  a  new  bond  af- 
fects his  right  to  administer,  and  suspends  his  authority  to  act 
pending  a  compliance  with  the  order." 

§  97.  Liability  of  sureties — Effect  of  new  bond. — Sureties 
on  any  bond  of  an  administrator  executed  pursuant  to  an  order 
of  court,  are  liable  for  any  breach  of  its  conditions  after  its 
execution.*^ 

The  liability  of  the  surety  is  coextensive  with  the  liability  of 
the  principal  in  the  bond,  and  anything  done  by  the  principal 
which  constitutes  a  lawful  breach  of  the  bond  renders  the  sure- 
ties liable. 

From  the  fact  that  the  surety  usually  assumes  an  obligation  on 
the  bond  without  any  consideration  to  himself,  his  contract  of 
suretyship  is  always  strictly  construed  and  the  liability  limited  to 

"  Burns'  R.  S.  1908,  §  2767.  alleging  the  release  of  his  co-surety, 

'=  Renfro  v.   White,  23  Ark.    195.  the  filing  of  a  new  bond,  by  order  of 

*^  Calhoun     v.     McKnight,     36     La.  court,  and  the  occurrence  of  the  al- 

Ann.  414.  leged  breaches  of  the  bond  after  the 

"National    Bank    v.     Stanton,    116  execution    of    the    new    bond,    is   not 

Mass.  435.  subject  to  demurrer,   the   liability  of 

*'  Bills  V.  Scott,  49  Tex.  430.  the  sureties  on  the  old  bond  being  at 

**Owen   V.    State,  25   Ind.   371.     In  an    end    after    the    execution    of    the 

an  action  on   administrator's  bond,  a  new  one.      State,   ex   rel.,  v.    Barrett, 

paragraph    of    answer    by    a    surety  121  Ind.  92,  22  N.  E.  969. 


§    97  BONDS   OF   EXECUTORS   AND   ADMINISTRATORS.  139 

the  official  acts  of  the  principal.  Acts  which  do  not  lie  in  the  line 
of  the  official  duty  and  authority  of  an  executor  or  administrator, 
those  not  done  under  color  of  the  office,  do  not  bind  the  sureties 
upon  the  administration  bond.  It  is  not  the  personal  acts  of  such 
officer,  but  his  official  acts  which  fix  the  liability  of  the  sureties 

upon  his  bond.*' 

A  surety  is  not  discharged  from  liability  by  reason  of  the  death 
of  the  administrator;  nor,  if  the  estate  is  unsettled,  will  the 
death  of  the  administrator  start  the  statute  of  limitations  to  run- 
ning in  favor  of  the  sureties  on  his  bond.  The  hability  of  the 
surety  does  not  become  fixed  until  a  final  account  has  been  ren- 
dered on  behalf  of  such  deceased  administrator  and  approved  by 
order  of  the  proper  court.*' 

New  bonds  are  not  necessarily  additional  bonds.  An  addi- 
tional bond  is  cumulative  and  adds  to  the  security  already  exist- 
ing while  a  new  bond  made  by  order  of  court  upon  the  applica- 
tion of  sureties  for  release  is  in  the  nature  of  a  substituted  bond 
and  stands  in  the  place  of  the  original  bond.  The  character  of 
the  bond  afifects  the  liability  of  the  surety.  In  the  one  instance 
the  sureties  upon  the  original  bond  are  discharged  from  further 
liabilitv,  while  those  on  the  new  bond  become  alone  liable  for  the 
future' administration;  while  in  the  other  instance  all  the  sureties 
upon  all  the  bonds  are  liable.  This  distinction  should  not  be 
overlooked  in  fixing  liability. 

The  sureties  upon  an  additional  bond  become  liable  tor  all 
monev  or  property  in  the  hands  of  the  executor  or  administrator 
at  the  time  of  the  execution  of  the  bond,  or  which  may  there- 
after come  into  his  hands."^ 

If,  because  of  the  insufficiency  of  the  original  bond  or  the  in- 

"McKee    v.    Griffin.    66    Ala.    211;  371.     In  the   case   of   State    ex  rel 

Curtis  V.  National  Bank,  39  Ohio  St.  v.  Hood,  7  Blackf.    (Ind.       2      .t  > 

^79-    Gerber   v     -\ckley,   11  Wis.   43,  held    that,    as    a    general    rule,    the 

1Q   A,r  Reo    751  sureties  on  the  bonds  of  executors  or 

47ate     V       Houston,     4     Blackf.  administrators  are  only  liable    or  the 

(Ind)   '91     WHliaL    V.     State,    68  acts  of  their  principals  after  the  exe- 

m"s   680    io  So.  52,  24  Am.  St.  297.  cution  of  bonds  by  them,  such  bonds 

^Bal^'v     State,    ex    rel.,    15    Ind.  being   prospective   in  the.r  operation. 
321 :  Owen  v.   State,  ex  rel.,  25   Ind. 


I40  INDIANA    PROBATE   LAW.  §    98 

solvency  of  the  sureties  thereon,  the  court  requires  a  new  bond  to 
be  given,  the  sureties  upon  this  additional  bond  do  not  become 
liable  until  the  remedy  upon  the  first  bond  is  exhausted/"  But 
while  the  sureties  upon  the  old  bond  would  be  liable  for  any 
breach  of  such  bond  before  the  new  one  was  accepted  and  ap- 
proved by  the  court,  it  seems  that  for  all  such  subsequent  breaches 
the  liability  is  upon  the  new  bond  and  not  upon  the  old." 

Where  there  is  nothing  appearing  on  the  face  of  such  addi- 
tional bond  to  indicate  an  intention  to  make  such  second  bond 
subsidiary  to  the  first,  but  it,  on  the  contrary,  appears  to  be  a 
primary  security,  the  sureties  on  such  bond  are  primarily  liable 
for  any  breach  thereof,  and  suit  can  properly  be  instituted  on  the 
second  bond  alone,  without  having  first  exhausted  the  first  bond, 
or  such  suit  may  be  on  the  first  and  second  bonds  together,  or 
upon  the  first  bond  alone,  both  being  primar}-  undertakings  relat- 
ing to  the  same  matter ;  the  last  bond  not  being  subsidiary  to  the 
first,  but  being  a  primary  and  concurrent  security." 

But  if  such  additional  bond  is  executed  as  subsidiary  security, 
the  prior  bond  should  be  exhausted  before  resort  is  had  to  the 
second  bond,^^ 

A  deposit,  of  cash  or  a  certified  check,  for  the  full  amount  of 
the  bond,  with  the  clerk  of  the  proper  court,  in  any  probate  pro- 
ceeding where  a  bond  is  required  by  law,  may  be  accepted  in  lieu 
of  sureties  upon  the  bond.^* 

§  98.  When  principal  liable  in  some  other  capacity. — The 
subject  of  this  section  is  well  expressed  in  Woemer's  American 
Law  of  Administration  in  section  255  as  follows: 

''It  is  sometimes  of  importance  to  ascertain  in  what  capacity  a 

'*Lane  v.   State,  24  Ind.  421.  older  bond.     Lewis  v.  Gambs,  6  Mo. 

"State  V.   Barrett,   121  Ind.  92,  22  App.   138. 

X.^E.  969.  ='Lane  v.  State.  24  Ind.  421.    Where 

"Allen    V.    State,    61    Ind.    268,    28  the  first  set  of  sureties  are  properly 

Am.  Rep.  673;  State  v.  Mitchell,  132  released,   the  effect  of  the  release  is 

Ind.  461,  32  X.  E.  86.     Money  paid  to  make  the  second  set  of  sureties  lia- 

on  the  general  liability  of  one  who  is  ble  to  the  extent  of  their  bond.    Mor- 

surety  on  both  bonds,  in  the  absence  ris  v.   Morris,  9  Heisk.    (Tenn.)    814. 

of  directions  at  the  time  of  payment,  "^  Burns'  R.  S.  1908,  §  1353. 
will  be  applied  on  his  liability  on  the 


§    99  BONDS    OF    EXECUTORS    AND    ADMINISTRATORS.  I4I 

principal,  who  has  given  bond  as  executor  or  administrator,  and 
also  as  guardian,  trustee  or  other  fiduciary,  with  different  sure- 
ties, is  chargeable  with  assets.  In  such  case  it  is  to  be  remem- 
bered that,  where  the  obligation  to  pay  and  the  right  to  receive 
are  united  in  the  same  person,  the  law  operates  the  appropriation 
of  the  fund  to  the  discharge  of  the  debt.  Hence,  where  an  ad- 
ministrator who  is  also  guardian  of  a  minor  distributee,  has 
made  final  settlement,  and  there  is  an  order  directing  the  pay- 
ment of  the  distributive  shares,  such  order  will  operate  to  charge 
him  in  his  capacity  as  guardian,  and  relieve  his  sureties  on  the 
administration  bond;  but  until  such  final  settlement  is  made,  or 
the  assets  accounted  for,  the  former  sureties  remain  liable;  and 
where  the  share  due  the  minors  is  not  ascertained  until  after 
their  majority,  the  debt  becomes  payable  to  them  and  not  their 
former  guardian,  and  the  sureties  on  the  administration  bond 
are  not  discharged.  So  where  a  surviving  partner  is  executor  of 
the  deceased  partner,  his  sureties  on  the  executor's  bond  do  not 
become  liable  for  his  acts  as  surviving  partner  until  the  partner- 
ship affairs  are  wound  up  and  the  interest  of  the  estate  therein 
ascertained.  But  where  an  administrator  has  no  further  use  for 
assets  as  such,  and  is  also  guardian  of  a  distributee,  he  will  be 
treated  as  holding  them  as  guardian,  even  if  he  has  not  made  final 
settlement." 

§  99.  Bonding  companies  as  sureties. — In  this  state  it  is 
provided  by  statute  that  bonding  or  surety  companies,  both  local 
and  foreign,  may  be  accepted  as  sureties  upon  any  bond  which 
the  law  requires  an  executor  or  administrator  to  make  in  the 
progress  of  the  settlement  of  the  estate." 

The  statute  also  provides  that  an  executor  or  administrator 
may  include  as  a  part  of  the  expense  of  executing  his  trust  such 
reasonable  sum  paid  such  surety  company  for  becoming  his 
surety  as  may  be  allowed  by  the  court  in  which  he  is  required  to 
account,  or  the  judge  thereof,  not  exceeding,  however,  one  per 
centum  per  annum  of  the  amount  of  such  bond.^^ 

"Burns'  R.  S.  1908,  §§  5728,  5729;  446,  68  N.  E.  316. 
Barricklow  v.  Stewart,  31  Ind.  App.    "Burns'  R.  S.  1908.  §§  5734,  5761. 


142  INDIANA  PROBATE  LAW.  §  lOO 

No  company  having  signed  any  such  bond  shall  be  permitted 
to  deny  its  corporate  power  to  execute  such  instrument  or  incur 
such  liability  in  any  proceeding  to  enforce  liability  against  it 
under  any  such  bond.^^ 

Such  companies  may  be  released  as  sureties  in  the  same  man- 
ner as  other  sureties  are  released."" 

§  100.  Bond  required  on  application  to  sell  real  estate. — 
Since  the  personal  property  of  a  decedent  which  comes  to  the 
hands  of  his  executor  or  administrator  is  the  primary  fund  out 
of  which  his  debts  are  to  be  paid,  resort  may  not  be  had  to  his 
real  estate,  for  that  purpose,  until  it  is  made  to  appear  that  the 
personal  estate  is  insufficient. 

It  is  the  law  in  this  state  that  the  conditions  of  the  original 
administration  bond  do  not  include  the  proceeds  of  real  estate,  so 
that  the  sureties  on  such  bond  are  not  liable  for  the  loss  or  mis- 
application of  the  funds  arising  from  the  sale  of  lands.  Before 
an  order  for  the  sale  of  real  estate  by  an  administrator  can  be 
made,  therefore,  it  becomes  necessary  for  him  to  file  a  new  bond 
conditioned  that  he  will  faithfully  administer  the  assets  arising 
out  of  the  sale  of  the  real  estate. ^^ 

This  rule  as  to  giving  bond  applies  to  executors  as  well  as 
administrators  except  in  cases  where  the  real  estate  is  devised  by 
will  to  the  executor  with  directions  that  it  be  sold  for  the  pay- 
ment of  debts  or  legacies.®" 

Previous  to  making  an  order  for  any  such  sale,  the  executor  or 
administrator  shall  file  in  the  office  of  the  clerk  of  such  court  a 
bond,  payable  to  the  state  of  Indiana  in  a  penalty  not  less  than 
double  the  appraised  value  of  the  real  estate  to  be  sold,  with 
sufficient  freehold  sureties  to  be  approved  by  the  court  and  con- 

"  Burns'  R.   S.   1908,  §  5735.  Munson  v.   Cole,  98  Ind.  502;  Davis 

=' Burns'  R.  S.  1908,  §  5760.  v.   Hoover,    112    Ind.   423,    14   N.    E. 

=«Worgang   v.    Clipp,   21    Ind.    119,  468;    Valentine    v.    Wysor,    123    Ind. 

83  Am.  Dec.  343 ;  Rogers  v.  State,  26  47.  23  N.  E.  1076,  7  L.  R.  A.  788n ; 

Ind.  App.   144.  59  N.  E.  334.  Bailey  v.  Rinker,  146  Ind.  129,  45  N. 

""Burns'  R.  S.  1908,  §§  2876,  2877;  E.  38. 


§  lOI    BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.       1 43 

ditioned  for  the  faithful  discharge  of  his  trusts  according  to 
law."^ 

The  bond  required  by  this  statute  is  entirely  distinct  from,  and 
disconnected  with,  the  original  bond.  It  is  not  treated  as  addi- 
tional to  it,  and  no  matter  how  ample  and  satisfactory  the  orig- 
inal bond  may  be  as  a  security,  the  sale  of  a  decedent's  real  estate 
can  be  permitted  only  upon  the  filing  of  a  new  and  independent 
obligation.  Such  obligation  is  to  be  executed  as  a  part  of  the 
proceedings  on  the  application  for  the  sale.^"  The  sureties  upon 
such  bond  can  only  be  held  liable  for  moneys  received  by  the 
administrator  or  executor  from  the  sale  of  real  estate.^^  Under 
a  former  statute"*  the  bond  given  on  an  application  to  sell  real 
estate  was  not  a  primary  security,  but  only  subsidiary  to  the 
original  bond  given  by  the  executor  or  administrator.  And  upon 
this  statute  are  based  the  decisions  in  the  cases  of  Salyer  v.  State, 
5  Ind.  202,  and  Salvers  v.  Ross,  15  Ind.  130.  The  rule  in  these 
cases  cannot  apply  under  the  present  statute. 

§  101.  Such  bond  a  prerequisite  to  sale. — While  the  stat- 
ute under  consideration  makes  the  filing  and  approval  of  a  bond 
by  an  executor  or  an  administrator  a  prerequisite  to  an  order  for 
the  sale  of  a  decedent's  real  estate,  yet  where  such  an  order  has 
been  obtained  and  a  sale  made  without  the  filing  of  such  addi- 
tional bond,  and  the  money  received  from  such  sale  faithfully 
accounted  for  by  such  executor  or  administrator,  the  sale  will  not 
be  void.  As  is  said  by  the  court  in  one  case,  "Everything  has 
been  accomplished  that  a  bond  could  have  accomplished.  The 
heirs  have  no  equity.  They  have  received  the  full  benefit  of  the 
sale.  A  bond  is  only  required  to  secure  the  heirs  against  the  mis- 
appropriation of  the  sale  money.  Here  they  have  had  all  the  bene- 
fit of  that."«= 

"Burns'  R.  S.  1908,  §  2870.  "Foster  v.  Birch,  14  Ind.  445;  Mc- 

•-^  Warwick  V.  State,  ex  rel.,  5  Ind.  Keever  v.  Ball,  71  Ind.  398;  Jones  v. 

350.  French,    92    Ind.    138;    Davidson    v. 

"Burtch   V.    State,   ex  rcl..   17  Ind.  Bates,    111    Ind.   391,    12   N.    E.   687. 

506:  Worgang  v.   Clipp,  21   Ind.   119,  Where  an  administrator  was  ordered 

83  Am.  Dec.  343.  to  give  an  additional  bond  to  secure 

"R.  S.  1831,  pp.  156-161.  the    proceeds    of    an    administrator's 


144  INDIANA  PROBATE  LAW.  §  I02 

The  statute  requires  "sufficient  freehold  sureties"  upon  such 
bond,  but  the  number  of  sureties  deemed  sufficient  is  not  men- 
tioned. It  has  been  held  that  where  a  bond  was  given  with  one 
surety  only,  and  such  bond  was  approved  by  the  court,  that  this 
was  such  an  adjudication  ujwn  the  sufficiency  of  the  bond  as 
would  be  conclusive.®** 

Where  it  appears  from  the  record  that  a  bond  was  given,  al- 
though no  bond  appears  in  the  record,  a  sale  of  real  estate  will 
not  be  vitiated,  for  the  presumption  is  that  a  bond  was  given.*^ 

If  a  sale  of  real  estate  has  been  made  by  an  administrator 
without  filing  the  bond  required  by  this  statute,  and  after  such 
sale  the  court  compelled  him  to  give  bond,  the  sureties  on  such 
bond  will  be  liable  for  the  proper  application  of  the  proceeds  of 
such  sale."* 

§  102.  Approval  and  custody  of  bonds. — All  bonds  given  in 
probate  proceedings  should  be  approved  by  the  judge  if  pre- 
sented in  term  time  of  the  court,  or  by  the  clerk  of  the  proper 
court  if  taken  in  vacation.  If  approved  by  the  clerk  he  should 
report  his  act  at  the  succeeding  term  of  court  for  the  approval  or 
disapproval  of  the  judge.  Unless  there  appears  a  good  and  suffi- 
cient cause  for  disapproval  the  action  of  the  clerk  should  be  sus- 
tained,  as   in  vacation   such   clerk   is  vested   with   considerable 

sale  of  real  estate,  and  it  appears  order  to  sell  real  estate  of  the  de- 
from  the  record  that  he  did  so,  cedent;  a  master  commissioner  was 
though  the  bond  is  not  in  the  record,  appointed  to  make  the  sale,  and  he 
it  will  not  be  presumed  that  such  gave  bond,  with  sureties,  conditioned 
bond  was  not  executed,  as  the  fail-  for  the  faithful  discharge  of  his 
ure  to  execute  such  bond  would  not  duties.  He  sold  the  land  and  con- 
vitiate  the  sale  where  the  proceeds  verted  a  part  of  the  proceeds  to  his 
of  the  sale  were  not  misappropriated,  own  use.  Held,  that  the  appointment 
Marquis  v.  Davis,  113  Ind.  219,  15  N.  of  the  commissioner  was  without  au- 
E.  251 ;  Clark  v.  Hillis,  134  Ind.  421,  thority  of  the  statute  and  void,  that 
34  N.  E.  13.  the  sale  was  void,  and  that  the  bond 

**  Marquis   v.    Davis,    113    Ind.   219,  was  void  by  statute,  and,  being  with- 

15  N.  E.  251 ;   Schneck  v.  Cobb,   107  out  consideration,  it  was  also  void  as 

Ind.  439,  8  N.  E.  271.  a  common  law  bond.     State,  ex  rel., 

"Clark  V.   Hillis,   134  Ind.  421,  34  v.  Younts,  89  Ind.  313;  Cunningham 

N.  E.  13.  An  administrator,  on  v.  Jacobs,  120  Ind.  306,  22  N.  E.  335. 
proper  petition,  in   1876,  obtained  an        °*  Fleece  v.  Jones,  71  Ind.  340. 


§    I03  BONDS    OF    EXECUTORS    AND    ADMINISTRATORS.  1 45 

authority  in  probate  matters.''''  Such  bond  when  accepted  and 
approved  should  be  left  in  the  custody  of  the  clerk,  who  should 
record  the  same  in  a  book  kept  for  that  purpose.  Bonds  of  an 
executor  and  administrator  are  official  documents  and  cannot  be 
removed  from  the  office  of  the  clerk.  If  they  should  be  needed 
as  evidence,  certified  copies  should  be  procured,  but  the  originals 
must  never  be  permitted  to  leave  the  custody  of  the  clerk.'^" 

If  both  the  original  and  the  record  should  be  lost  or  destroyed, 
a  minute  entry  of  the  court,  reciting  the  appointment  of  the  ad- 
ministrator, the  approval  of  the  bond,  its  amount,  and  the  names 
of  the  sureties,  is  competent  evidence,  and,  if  not  rebutted,  is 
sufficient  to  authorize  a  substitution  as  the  record  of  the  court, 
but  is  not  conclusive  as  to  the  execution  of  the  bond.^^ 

§  103.  New  bond  required  on  destruction  of  the  old. — All 
guardians,  administrators  and  executors  whose  official  bonds  have 
been  or  may  be  destroyed  in  any  general  or  notorious  destruction 
of  the  records  of  any  county  in  this  state  shall,  within  three 
months  thereafter,  file  new  bonds,  to  the  acceptance  of  the  proper 
officer;  or,  failing  so  to  do,  shall  cease  to  be  such  guardians, 
administrators  or  executors,  and  the  proper  court  shall  appoint  a 
successor.  The  liability  upon  such  new  bond  shall  commence 
from  the  time  of  filing  the  same  in  the  proper  office;  and  the 
sureties  in  the  bonds  destroyed  shall  not  be  liable  for  any  default 
or  miscarriage  of  their  principal  occurring  after  such  new  bond 
has  been  filed. ^" 

§  104.  Validity  not  affected. — No  defect,  informality  or  il- 
legality in  the  appointment  of  an  executor  or  administrator,  or 
in  the  execution,  approval  or  filing  of  his  bond,  shall  affect  the 
validity  of  such  bond,  but  he  and  his  sureties  therein  shall  be  as 
fully  bound  as  if  such  appointment  had  been  regularly  made  and 
such  bond  executed,  approved  and  filed  in  due  form  of  law;  nor 

"Burns'  R.  S.  1908,  §§  2725,  2759,        '"Miller  v.  Gee,  4  Ala.  359. 
2760;   B-rown   v.    King,    2    Ind.    520;         "Tanner    v.    Mills,   50   Ala.    356. 
Barricklow  v.   Stewart,  31   Ind.  App.        '=  Burns'  R.  S.  1908,  §  1319. 
446,  68  N.   E.  316;   Collier  v.  Jones, 
86  Ind.  342. 

10— Pro.  L.wv. 


146  INDIANA    PROBATE    LAW.  §    IO5 

shall  any  surety  be  released  therefrom  by  reason  of  any  condi- 
tion, inducement  or  consideration  causing  him  to  sign  such  bond 
as  surety.''^ 

The  bond  of  an  administrator  with  the  will  annexed,  condi- 
tioned that  he  will  faithfully  discharge  his  duties  as  administrator 
simply,  is  not,  for  that  reason,  defective.'*  The  failure  to  ap- 
prove the  bond  does  not  invalidate  it.'^° 

§  105.  Release  of  sureties, — Any  surety  upon  any  bond  of 
any  executor,  administrator,  administrator  with  the  will  annexed, 
or  de  bonis  non,  may  apply  to  the  circuit  court  approving  such 
bond  to  be  released  therefrom  by  filing  his  request  therefor  with 
the  clerk  of  said  court  and  giving  ten  days'  notice  thereof  to  the 
principal  in  such  bond.  Upon  proof  of  such  notice,  the  court 
shall  order  such  principal,  within  a  time  to  be  fixed  by  the  court, 
not  exceeding  five  days,  to  execute  a  new  bond,  with  penalty  and 
sureties,  to  the  approval  of  the  court.  Upon  failure  to  execute 
such  new  bond  within  the  time  limited,  he  shall  be  forthwith 
removed  by  the  court ;  and  such  surety  shall,  as  soon  as  such  new 
bond  is  furnished,  or  such  principal  removed  by  the  court,  be  re- 
leased from  any  liability  for  any  malfeasance  or  misfeasance  of 
such  principal  thereafter  occurring,  but  shall  remain  liable  for 
his  prior  acts  and  omissions.  And  if  a  new  bond  be  executed,  the 
principal  and  the  sureties  therein  shall  be  and  continue  liable  for 
the  administration  of  the  estate  or  the  execution  of  the  will,  as 
the  case  may  be,  in  like  manner  and  to  the  same  extent  that  the 
obligors  in  the  original  bond  would  have  been  bound  had  it  con- 
tinued in  force.'® 

§  106.  Statute  remedial. — This  statute  is  a  remedial  one 
for  sureties,  and  as  such  should  be  liberally  construed.  It  was 
intended  to  include  bonds  for  the  sale  of  real  estate  by  executors 
and  administrators,  as  well  as  original  bonds  by  them,  executed 
to  secure  the  faithful  discharge  of  their  general  duties.     The 

■'Burns'  R.  S.  1908,  §  2761.  "State  v.   Britton,   102  Ind.  214,  1 

"  Owen  V.  State,  25  Ind.  371.  N.  E.  617. 

'*  Burns'  R.  S.  1908,  §  2769. 


§    I06  BONDS    OF    EXECUTORS    AND    ADMINISTRATORS.  1 47 

Statute  provides  for  both  classes  of  bonds,  and  the  remedy  of  the 
surety  is  equally  applicable  and  appropriate  to  each.  And  this 
remedy  is  an  absolute  one  in  favor  of  a  surety,  and  is  not  de- 
pendent on  the  discretion  of  the  court.  It  is  not  necessary  for 
the  surety  applying  for  a  release  under  this  statute  to  give  any 
reason  for  his  wish  to  be  discharged.  His  mere  request  is 
sufficient." 

Such  release  applies  only  to  future  liability  upon  such  bond, 
and  is  not  a  release  of  a  surety  from  any  liability  which  has 
already  occurred  upon  the  bond.'^^  If,  by  reason  of  the  applica- 
tion of  the  sureties  upon  any  bond  to  be  released  therefrom,  and 
by  order  of  court  a  new  bond  is  given,  the  obligors  in  this  new 
bond  are  only  liable  for  defaults  occurring  after  its  execution."^" 
And  when  a  new  bond  is  given  in  obedience  to  the  order  of  the 
court,  and  is  approved  by  such  court,  the  sureties  upon  the  old 
bond  are  released  from  any  further  liability  thereon  without  a 
formal  order  of  release  by  the  court."^" 

In  an  action  on  the  bond  of  an  executor  or  administrator 
against  the  sureties,  an  answer  by  such  sureties  to  the  complaint, 
that,  before  a  breach  of  the  bond  occurred,  they  had  been  re- 

"Kendrick    v.    Wilkinson,    18   Ind.  the    same    may    have    influenced    the 

206.  first  security  in  seeking  a  discharge. 

"State  V.   Barrett,   121   Ind.  92,  22  The    administrator     may     have     dis- 

N.  E.  969;  State,  ex  rel.,  v.  Page,  63  charged   his   whole   duty  up   to   that 

Ind.  209.  time,    and    yet    may    have    afterward 

™  Lane  v.  State,  ex  rel.,  27  Ind.  108.  violated  that  duty  in   failing  to  pay 

In  the  case  of  Bales  v.  State,  ex  rel.,  out,   or   distribute,  the   funds   so   re- 

15  Ind.  321,  the  court,  in  considering  ceived.     The  second  surety  would  be 

the   question   of   the   liability   of   the  liable   for   failures   of   duty  after  he 

surety  on  a  bond  given  at  the  time  of  was  appointed,  if  not  before,  a  ques- 

the  release  of  a  former  surety,  said:  tion  not  presented;  whether  the  same 

"The  obligation  rested   upon   the   ad-  resulted  from  a  failure  to  collect  and 

ministrator    to    reduce    and    properly  reduce  the  assets,  or  to  pay  over,  or 

dispose  of  the  assets.     If,  as  averred  properly  account  for  the  same  after 

in    the    answer,    he    had    reduced    to  they  should  be   so  collected." 

money,  and  to  his  possession,  all  such  ^  Lane    v.    State,    ex    rel.,   27    Ind. 

assets,  still  the  duty  remained  to  ap-  108;  State  v.  Barrett,  121  Ind.  92,  22 

ply    the    same    as    the    law    directed.  X.  E.  969. 
The  fear  that  he  would  not  so  apply 


148  INDIANA  PROBATE  LAW.  §  IO7 

leased  by  the  proper  court  and  a  new  bond  given,  is  a  sufficient 
answer  on  demurrer.®^ 

The  notice  required  by  the  statute  must  be  given,  or  there 
must  be  an  appearance  by  the  executor  or  administrator. 

§  107.  Bonds  of  foreign  executors,  etc. — Whenever  it 
shall  appear  to  the  court  that  such  foreign  executor  or  adminis- 
trator is  bound,  with  sufficient  surety  in  the  state  or  country  in 
which  he  was  appointed,  to  account  for  the  proceeds  of  any  sale, 
in  this  state,  of  his  decedent's  real  estate,  for  the  payment  of 
debts  and  legacies,  and  that  by  the  laws  of  such  state  or  country 
his  sureties  are  liable  for  the  proper  accounting  for  such  pro- 
ceeds, and  a  copy  of  such  bond,  duly  authenticated,  shall  be  filed 
in  such  court,  no  further  bond  shall  be  required  of  him  here.  If, 
however,  he  be  not  thus  sufficiently  bound,  he  shall  give  bond  in 
said  court  as  is  required  of  executors  or  administrators  appointed 
in  this  state.®" 

If  it  appears  to  the  court  that  the  bond  given  by  a  foreign 
executor  or  administrator  in  the  jurisdiction  of  his  appointment 
is  sufficient  to  cover  the  proceeds  of  any  sale  of  real  estate  made 
by  him  in  this  state,  he  will  not  be  required  to  file  any  bond  here.^^ 

"  State,  ex  rel.,  v.  Gregory,  88  Ind.        ®  Burns'  R.  S.  1908,  §  2884. 
110.  ^Rapp  V.  Matthias,  35  Ind.  332. 


CHAPTER    VII. 

LIABILITY  OF  ADMINISTRATORS,  ETC. SUITS  ON  BONDS. 

§  108.  Personal  liability.  §  115.  By      whom      suits      may      be 

109.  Liability   for   conversion.  brought. 

110.  Liability  for  waste.  116.  Same — Continued. 

111.  To  avoid  liability  officer  must  117.  Defenses   to   suits. 

be  diligent.  118.  Same — Right   to   counterclaim. 

112.  Suits     on     bonds — For     what        119.  Measure  of  damages  in  suit  on 

causes.  bond. 

113.  Same — Averments      and      evi-         120.  Judgment    without     relief    or 

dence.  stay  of  execution. 

114.  Same — Duty  as   to   surplus. 

§  108.  Personal  liability. — The  giving  of  a  bond  by  an  ex- 
ecutor or  administrator  does  not  release  him  from  personal  Ha- 
biht}',  the  remedy  given  on  the  bond  being  merely  cumulative. 
And  there  are  many  instances  where  the  acts  of  an  executor  or 
administrator  create  a  personal  liability  only ;  such  acts,  not  being 
done  in  their  official  character,  create  no  liability  on  the  bond. 

There  is,  however,  always  a  personal  liability  of  the  executor 
or  administrator  where  the  remedy  is  properly  upon  his  bond; 
but  in  such  case  the  liability  must  be  such  as  results  from  a 
wrongful  exercise  of  his  rightful  authority  as  such  officer. 

Contracts  entered  into  by  an  executor  or  administrator,  al- 
though apparently  about  matters  properly  connected  with  the  set- 
tlement of  the  estate,  cannot  be  regarded  as  in  any  sense  the  con- 
tracts of  the  decedent.  They  are  necessarily  the  personal  con- 
tracts of  the  executor  or  administrator,  and  he  must  be  held  per- 
sonally liable  therefor,  where  he  does  not  stipulate  for  exemption 
from  such  liability.^    Nor  can  sureties  on  the  bond  be  held  liable 

'Long   v.    Rodman,     58     Ind.     58;  81  Am.   St.  95.     The  case  of  Carter 

Hayes  v.  Shirk,   167  Ind.  569,  78  N.  v.  Thomas,  3  Ind.  213,  was  an  action 

E.  653;   De  Coudres  v.  Union  Trust  of    assumpsit    brought     against     one 

Co.,  25   Ind.   App.  271,  58  N.   E.  90,  Chancey  Carter,  in  his  individual  ca- 

149 


150  INDIANA    PROBATE   LAW.  §    I08 

for  assets  which  do  not  legally  come  into  the  hands  of  an  execu- 


pacity,  as  acceptor  of  an  order  drawn 
on  him  by  one  McKeen.  The  accept- 
ance sued  on  was  as  follows :  "Ac- 
cepted, to  be  paid  when  funds  are  re- 
ceived for  the  estate.  C.  Carter,  ad- 
ministrator." The  evidence  in  the 
case  showed  that  funds  to  the  amount 
of  $300  belonging  to  the  estate  had, 
subsequently  to  the  acceptance,  come 
into  the  hands  of  said  Carter,  and 
that  in  August,  1850,  payment  of  the 
acceptance  was  demanded  of  him  and 
refused;  that  Carter  had  resigned  as 
administrator  before  the  commence- 
ment of  the  suit,  and  that  administra- 
tors de  bonis  non  had  been  appointed, 
and  the  court  found  for  the  plaintiff 
in  the  sum  of  $128.  The  Supreme 
Court  affirmed  the  judgment,  saying: 
"It  seemed  that  'if  an  executor  or  ad- 
ministrator promises,  in  writing,  that 
in  consideration  of  having  assets,  he 
will  pay  a  particular  debt  of  the  tes- 
tator or  intestate,  he  may  be  sued 
on  his  promise  in  his  individual  ca- 
pacity, and  the  judgment  against  him 
will  be  de  bonis  propriis.' "  Mills  v. 
Kuykendall,  2  Blackf.  (Ind.)  47,  was 
an  action  of  assumpsit  by  the  ap- 
pellee against  Mills  and  Harness,  as 
administrators,  on  a  written  agree- 
ment to  pay  money  out  of  an  estate. 
The  question  was  whether  the  estate 
could  be  held  on  a  promise  made  by 
the  administrators.  The  court  say, 
among  other  things,  speaking  of  this 
action  in  assumpsit,  that  "The 
promise  of  administrators  on  a  con- 
sideration originating  subsequently  to 
their  intestate's  death,  cannot  sustain 
such  an  action."  And  proceeding 
further,  say :  "The  fatal  objection 
to  the  count  is,  that  the  plaintiff  in 
his  suit  goes  altogether  against  the 
administrators  in  their  representative 


character — against  the  estate  of  the 
intestate,  when,  by  his  own  showing, 
that  estate  has  nothing  to  do  with  his 
cause  of  action,  and  can  in  no  way 
be  affected  by  it." 

In  Holderbaugh  v.  Turpin,  75  Ind. 
84,  39  Am.  Rep.  124,  which  was  a 
suit  brought  against  Holderbaugh  on 
an  agreement  to  submit  certain  mat- 
ters to  arbitration,  and  that  each 
party  should,  under  certain  condi- 
tions, pay  one-half  of  the  costs,  the 
court  say:  "The  mere  fact  that  the 
matters  submitted  to  arbitration  grew 
out  of  an  action  prosecuted  by  the 
appellant  as  administrator,  does  not 
warrant  the  inference,  as  against  the 
positive  allegations  of  the  complaint, 
that  he  bound  himself  only  in  the 
capacity  of  administrator."  It  is 
further  said  on  page  87  in  the  same 
case :  "  'The  whole  case  shows,  that 
the  object  of  the  plaintiff  was  to 
charge  the  estate  of  the  deceased,  by 
obtaining  a  judgment  against  the  ad- 
ministrators de  bonis  intestati.  The 
promise  of  administrators,  on  a  con- 
sideration originating  subsequently  to 
their  intestate's  death,  cannot  sustain 
such  an  action.'  *  *  *  -phe  un- 
dertaking of  appellant  was  upon  a 
consideration  which  accrued  subse- 
quent to  the  death  of  the  intestate, 
and  was  to  do  a  thing  which  the  in- 
testate's estate  was  not  bound  to  do. 
It  is  impossible,  in  view  of  the  au- 
thorities cited  and  the  character  of 
the  undertaking  itself,  to  regard  it 
otherwise  than  as  the  promisor's 
original  contract."  The  rule  is  thus 
stated  in  Jones  on  Conv.,  §  831 :  "A 
person  executing  a  conveyance  in  a 
representative  capacity,  such  as  ad- 
ministrator, guardian,  or  trustee,  with 
the  covenants  for  title  usual  in  other 


§    I08  LIABILITY    OF    ADMINISTRATORS.  15 1 

tor  or  administrator,  even  though  he  has  charged  himself  with 
the  receipt  of  them." 

Independent  contracts  originating  with,  and  purporting  to  be 
executed  by,  an  executor  or  administrator,  officially,  for  the  sole 
benefit  of  the  estate,  and  intended  to  bind  only  the  estate,  have 
been  held  void  as  to  the  estate,  and  personally  binding  on  the  offi- 
cer in  the  following  cases :  Upon  an  acceptance  f  upon  covenants 
of  title  inserted  by  him  in  his  conveyance  of  real  estate;^  for  the 
price  of  horses  purchased  for  use  in  carrying  on  farming  for  and 
on  an  intestate's  estate  f  for  money  borrowed  to  pay  debts.*' 

It  being  said  in  one  case :  "The  rule  must  be  regarded  as  well 
settled  that  an  executor  or  administrator  is  bound  individually 
and  not  otherwise,  by  his  promise  to  pay  "as  executor  or  admin- 
istrator," because  he  has  no  power  to  bind  the  estate  by  con- 
tract."' 

An  administrator  has  no  power,  by  his  promise,  to  bind  the 
estate  of  his  decedent,  unless  the  facts  show  his  right  to  charge 
the  estate,  or  that  the  consideration  for  such  promise  arose  prior 
to  the  intestate's  death.  Otherwise  such  promise  is  only  his  per- 
sonal obligation.* 

Where  property  which  does  not  belong  to  the  estate  of  the  de- 
cedent, or  is  not  properly  chargeable  to  the  executor  or  adminis- 

deeds,   is  personally  bound  by  them,  Lynch  v.   Kirby,  65   Ga.  279;   Dunne 

though  he  was  under  no  obligation  to  v.   Deery,  40  Iowa  251. 

make  any  of  them,  and  had  no  au-  ''Austin  v.   Munro,  47   N.  Y.  360; 

thority  to  bind  the  estate  he   repre-  Moody  v.  Shaw,  85  Ind.  88;  Holder- 

sented  by  such  covenants.  baugh  v.  Turpin,  75  Ind.  84,  39  Am. 

=  Mundorff   v.   Wangler,   44   N.   Y.  Rep.   124. 

Super.  495;  Ennis  v.  Smith,  14  How.  *  Mills    v.    Kuykendall,    2    Blackf. 

(U.  S.)   400,   14  L.  ed.  472;   Harker  (Ind.)   47;  Grimes  v.  Blake,  16  Ind. 

V.  Irick,  2  Stock.    (N.  J.)   269.  160;  Cornthwaite  v.  First  Nat.  Bank, 

^  Perry    v.    Cunningham,     40     Ark.  57  Ind.  268;  Moody  v.  Shaw,  85  Ind. 

185.  88;    Brown   v.   Forst,    95    Ind.    248. 

*  Sumner  v.  Williams,  8  Mass.  162,  "The   law   is   quite   well   settled  that 

5  Am.  Dec.  83 ;  Osborne  v.  McMillan,  while  an   executor    or    administrator 

5   Jones    (N.    Car.)    109.  may  incur   a   personal  obligation,   he 

"  Rich  V.  Sowles,  64  Vt.  408,  23  Atl.  cannot,  except  as  to  expenses  of  ad- 

723,  15  L.  R.  A.  850n.  ministration,   bind   the    estate   by   his 

•McFarlin  v.   Stinson,  56  Ga.  396;  contracts  with  reference  to  the  pay- 
ment of  claims." 


152  INDIANA  PROBATE  LAW.  §  I09 

trator  of  such  estate,  comes  into  the  hands  of  such  executor  or 
administrator,  he  cannot,  by  charging  himself,  in  his  official  ca- 
pacity, with  such  property,  make  it  a  part  of  the  assets  of  his 
decedent's  estate,  nor,  by  doing  so,  can  he  render  such  estate  or 
himself,  as  executor  or  administrator  thereof,  liable  for  such 
property."  Property  so  received  becomes  no  part  of  the  estate, 
and,  if  converted  by  the  executor  or  administrator  to  his  own  use, 
cannot  be  recovered  of  the  sureties  upon  his  official  bond;  but 
such  executor  or  administrator  will  be  personally  liable,  for 
where  an  executor  or  administrator  assumes  to  act  outside  of  his 
power  under  the  law,  he  is  a  wrong-doer  and  personally  liable, 
in  his  natural  capacity,  to  parties  injured.^" 

§  109.  Liability  for  conversion. — The  duties  of  an  execu- 
tor or  administrator,  in  regard  to  the  assets  of  an  estate,  are  two- 
fold; he  should  reduce  such  assets  to  money  and  to  possession 
as  rapidly  as  possible,  and  then  apply  the  same  properly,  as  the 
law  directs;  and  failing  in  either  is  a  breach  of  his  bond. 

Assets  of  an  estate  properly  chargeable  to  the  executor  or  ad- 
ministrator of  such  estate,  and  by  him  converted  to  his  own  use, 
may  be  recovered  from  him  and  the  sureties  on  his  official  bond 
by  a  suit  upon  the  bond ;  and  the  complaint  in  such  suit  need  not 
allege  a  demand  for  the  property  so  converted  prior  to  the  ac- 
tion, for  where  an  actual  conversion  of  property  is  charged  in  the 
complaint  it  is  not  necessary  to  aver  a  demand  also."  And  any 
misapplication  of  the  property  or  trust  fund  in  the  hands  of  any 
executor  or  administrator  is  a  conversion  of  such  fund,  and  con- 
stitutes a  suable  breach  of  his  bond.^-    In  case  of  such  misappli- 

'  Rodman  v.  Rodman,  54  Ind.  444.  failed  to   account   for   two   thousand 

"Hankins  v.   Kimball,  57   Ind.   42.  dollars  interest  collected  by  him ;  (2) 

"Nelson    v.    Corwin,  59  Ind.  489;  that  he  had  wrongfully  withheld  dis- 

Jefifersonville  &c.  R.   Co.  v.   Gent,  35  tribution    for    four    years,    though    it 

Ind.  39;   Ferguson  v.   Dunn,  28  Ind.  was    demanded;     (3)    that     he     had 

58;    Robinson   v.    Skipworth,  23   Ind.  wrongfully  delayed  settlement  of  the 

311 ;  Spencer  V.  Morgan,  5  Ind.  146.     A  estate  for  four  years.     Held,  that  the 

complaint  on  an  administrator's  bond,  complaint  was  good  as  to  each  of  its 

on  relation  of  the  persons  entitled  to  breaches.      Stanton  v.    State,    ex   rel., 

distribution,    assigned    as    breaches:  82  Ind.  463. 

(1)      That     the     administrator     had  "Fleece    v.    Jones,    71     Ind.     340; 


§    no  LIABILITY    OF    ADMINISTRATORS.  153 

cation,  not  only  the  executor  or  administrator,  but  any  person 
who,  with  a  full  knowledge  of  the  misapplication  of  the  money 
of  the  estate,  has  received  from  the  executor  or  administrator 
directly  the  money  thus  misapplied,  will  be  held  liable  for  the 
full  amount  thereof  to  any  creditor  of  the  decedent,  or  other 
person  interested  in  the  due  administration  of  the  estate  and  who 
is  injured  by  such  misapplication  of  the  assets  of  the  estate." 

§  110.  Liability  for  waste.— A  devastavit  occurs  whenever 
an  executor  or  administrator  wastes  the  assets  of  the  estate,  and 
consists  of  any  act,  omission  or  mismanagement  by  which  the 
estate  suffers  loss,  or  a  devastavit  may  result  from  the  payment 
of  claims  which,  by  the  exercise  of  proper  diligence,  the  admin- 
istrator might  have  ascertained  to  be  unjust  and  illegal.  And 
any  loss  which  results  to  an  estate  from  the  misapplication  of 
funds  by  an  executor  or  administrator  must  be  made  good.  How- 
ever, the  payment  of  a  just  and  legal  claim  against  an  estate  is 
not  a  devastavit  or  a  wasting  of  the  estate.'* 

The  sureties  upon  the  bond  of  an  executor  or  administrator 
are  liable  for  any  waste  or  maladministration  of  the  estate  by 
such  executor  or  administrator,  at  the  suit  of  any  person  inter- 
ested in  the  estate.'^    A  creditor  has  sufficient  interest  to  permit 

State    ex    rel.,   v.    Sanders,    62    Ind.  thony  v.   Negley,  2  Ind.  211.     Com- 

562   30  Am   Rep.  203.  plaint  on  the  general  bond  of  an  ad- 

»' Fleece  V   Jones,  71  Ind.  340;  Rog-  ministratrix   averring   the   receipt   of 

ers  V    Zook,  86  Ind.  237;  Nugent  v.  two    thousands    dollars   personal    as- 

Laduke,  87  Ind.  482.  sets,  and  the  sale  of  real  estate,  and 

"Beardsley  V.  Marsteller,  120  Ind.  for  breach:  (1)  Failure  to  pay 
319  22  N  E  315  •  Ayers  v.  Lawrence,  money  into  court  as  ordered  upon  re- 
59  \  Y  192  A  promissory  note  ex-  moval.  (2)  Conversion  of  money  of 
ecuted  and  made  payable  to  an  ad-  the  estate  to  her  own  use  {6) 
ministrator  for  a  debt  due  the  estate  Waste  in  the  payment  in  full  of 
represented  bv  him  is  the  property  claims  not  preferred,  the  estate  being 
of  such  estate,  and  his  transfer  of  insolvent.  (4)  The  wrongful  pay- 
such  note  without  consideration  is  a  ment  of  a  mortgage-debt  secured  on 
devastavit,  or  wasting  of  the  assets  land  sold  by  her  subject  to  the  mor  - 
of  the  estate.  Thomasson  v.  Brown,  gage.  (5)  Allowance  of  unjust 
43  Ind.  203,  distinguished.  Krutz  v.  claims  specified.  Answer,  that  the  ad- 
Stewart,  76  Ind.  9.  ministratrix  '-\^^;'^2Tt^^  f^. 
-Personsv.  Crane,2Ind.  157;An-  personal   estate.     Held,   that  the   an 


154  INDIANA  PROBATE  LAW.  §  IIO 

him  to  maintain  such  suit;  but  some  of  the  earher  cases^*  hold 
that  a  suit  could  not  be  brought  by  a  creditor  of  the  estate  upon 
the  bond  of  an  executor  or  administrator  until  after  he  had  ob- 
tained a  judgment  on  his  claim  against  such  executor  or  admin- 
istrator, or  established  judicially  what  is  technically  called  a  de- 
vastavit. The  same  rule  was  held  to  apply  to  the  claims  of  lega- 
tees and  distributees;  but  it  is  now  held  that  the  statute  author- 
izing such  suits  dispenses  with  the  necessity  of  having  previously 
established  such  claims  and  the  rule  laid  down  in  the  earlier  cases 
has  been  overruled.  ^^ 

The  common-law  writ  of  devastavit  is  unknown  in  our  probate 
practice.  Mr.  Woemer  says,  "that  the  term  'devastavit'  is  used 
in  America  as  a  convenient  designation  for  such  acts  of  the  exec- 
utor or  administrator  as  render  him  liable  to  the  estate  out  of 
his  own  means,  and  has  no  other  significance;  and  where  such 
liability  is  found  according  to  the  principles  of  law  applicable, 
the  effect  of  the  common-law  remedy  of  devastavit  is  accom- 
plished by  the  falsification  or  surcharge  of  his  account."^^ 

Any  unlawful  use  by  an  executor  or  an  administrator  of  the 
assets  of  the  estate,  by  which  such  assets  are  lost  to  the  estate, 
is  waste  on  the  part  of  the  executor  or  administrator  for  which 
he  and  his  sureties  will  be  liable  on  his  official  bond." 

swer  was  good  on  demurrer,  except  breaches,  failure  to  pay  the  creditor's 

as  to   nominal   damages,   and,   there-  claim,  conversion  of  the  assets,  and 

fore,    overruling    the    demurrer    was  failure  to  settle  the  estate  in  proper 

not   available   error.     Held,   that   the  time,   neither   other  unpaid  creditors 

fifth  breach,  if  good,  which  is  doubt-  nor  the  administrator  of  the  estate  of 

ed,   would  only  justify  the   recovery  the  deceased  administrator  were  nec- 

of  a  nominal  sum.     Held,  that  under  essary   parties,   nor   was   proof    of    a 

the  complaint  nominal  damages  only  demand  and  failure  to  pay  sufficient 

could  be  given,  and  for  this  only  the  proof  of  a  conversion  of  the  assets. 

Supreme  Court  will  not  award  a  new  Embree  v.  State,  ex  rel.,  85  Ind.  368. 

trial  to  the  plaintiff.    State,  ex  rel.,  v.  "  State,  ex  rel.,  v.   Strange,   1   Ind. 

Cloud,  94  Ind.   174.  538;    State,    ex   rel.,   v.    Railsback,    7 

"Governor    v.     Shelby,    2    Blackf.  Ind.   634;    State  v.   Hughes,    15   Ind. 

(Ind.)     26;    Eaton    v.    Benefield,    2  104;   Heady  v.   State,    60    Ind.    316; 

Blackf.   (Ind.)  52;  Hunt  v.  White,  1  Bescher  v.  State,  63  Ind.  302. 

Ind.  105.   In  a  complaint  on  the  bond  '^  Woerner  Am.  Law  Admin.,  §  534. 

of  a  deceased  administrator,  on  the  "  State,     ex     rel.,     v.     Johnson,     7 

relation    of    a   creditor,    alleging,    as  Blackf.   (Ind.)  529;  Johnson  v.  Hed- 


§111  LIABILITY   OF   ADMINISTRATORS.  155 

§  111.    To  avoid  liability  officer  must  be  diligent. — The  law 

demands  of  an  executor  or  administrator  diligence  in  the  dis- 
charge of  the  duties  of  his  trust;  and  for  a  failure  to  use  such 
diligence  he  becomes  liable  in  an  action  on  his  bond.  If  he  is 
lenient  or  indulgent  to  the  debtors  of  his  decedent,  and  forbears 
to  sue  them,  he  acts  at  his  peril,  and  incurs  a  personal  liability 
which  may  result  in  a  serious  loss.-" 

An  executor  or  administrator  is  required  to  be  diligent  and 
active  in  the  discharge  of  his  duties,  and  will  not  be  entitled  to 
credit  for  uncollected  notes  belonging  to  the  estate,  unless  he 
can  show  to  the  satisfaction  of  the  court  that  such  notes  could 
not  have  been  collected  with  the  exercise  of  proper  diligence.-' 

A  suit  can  be  maintained  on  the  bond  of  a  deceased  adminis- 
trator for  the  violation  of  any  of  the  duties  of  his  trust ;  but  his 
estate  cannot  be  subjected  to  the  costs  of  a  suit  unless  he  had 
been  guilty  of  some  default  or  neglect  of  duty.  And  if  it  shall 
appear  that  such  administrator  had  paid  all  the  debts  of  the 
estate  and  the  costs  of  administration,  and  had  paid  out,  in  good 
faith,  the  residue  of  the  estate  in  his  hands  to  those  entitled 
thereto,  although  he  may  have  died  before  making  a  final  report 
in  the  trust,  his  estate  cannot  be  held  further  liable." 

An  administrator  appointed  in  this  state  is  bound  to  use  due 
diligence  in  collecting  and  accounting  for  claims  due  the  estate 
here,  notwithstanding  the  decedent,  at  the  time  of  his  death,  was 
domiciled  in  another  state  and  an  administrator  had  been  ap- 
pointed in  such  other  state.  And  for  a  neglect  of  his  duty  here 
an  administrator  is  liable  on  his  bond.-^ 

An  action  will  lie  against  an  executor  or  administrator  on  his 
bond  for  a  neglect  to  pay  judgments  against  the  decedent's  estate, 
the  estate  being  solvent  and  such  executor  or  administrator  hav- 
ing sufficient  money  in  his  hands,  to  pay  such  judgments.     For 

rick,   33   Ind.    129,  5   Am.   Rep.    191;        ^Miller  v.  Steele,  64  Ind.  79;  Con- 
Thomasson  v.  Brown,  43  Ind.  203.  dit  v.  Winslow,  106  Ind.  142,  5  N.  E. 

="  Miller    v.     Steele,    64    Ind.    79;     751. 
Condit   V.   Winslow,   106  Ind.   142,   5        "Lucas  v.  Donaldson,  117  Ind.  139, 
N    E   751  19  N.  E.  758. 

=^  State  V.  Gregory,  88  Ind.   110. 


156  INDIANA  PROBATE  LAW.  §  112 

where  the  estate  is  clearly  solvent,  it  is  the  duty  of  an  executor 
or  administrator  to  pay  the  debts  against  the  estate  in  their  regu- 
lar order  as  fast  as  the  money  of  the  estate  comes  into  his 
hands." 

An  administrator  having  sufficient  funds  in  his  hands  arising 
from  the  personal  property,  after  paying  expenses  of  adminis- 
tration, last  illness,  etc.,  who  fails  to  pay  a  mortgage  debt  against 
his  intestate's  real  estate,  but  allows  the  mortgage  to  be  fore- 
closed, is  liable  on  his  bond  to  the  widow  of  the  intestate  for  her 
interest  in  such  real  estate,  even  though  she  may  have  joined  in 
the  mortgage.-^ 

As  to  goods  or  chattels  of  the  estate  which  have  come  into  the 
hands  of  the  executor  or  administrator,  and  have  afterward  been 
lost  by  fire,  theft  or  other  casualty,  the  rule  of  the  common  law 
was  that  the  executor  or  administrator  was  liable  for  the  loss; 
but  it  is  the  rule  now  that  when  goods  are  stolen  or  lost  or  de- 
stroyed by  accident,  fire  or  other  casualty  without  the  fault  of 
the  executor  or  administrator,  he  is  not  to  be  charged  with  the 
loss,  but  it  must  be  borne  by  the  estate. 

This  rule,  however,  would  not  be  followed  in  cases  where  the 
loss  was  of  such  a  nature  as  might  have  been  covered  by  an  in- 
surance policy,  and  would  have  been  so  covered  by  a  prudent  man 
in  the  course  of  his  own  business,  and  there  is  money  in  the  hands 
of  the  executor  or  administrator  sufficient  to  purchase  a  policy 
therefor,  for  the  duty  of  the  executor  in  such  case  would  be  to 
insure  the  property  against  loss,  to  protect  the  estate.^*' 

§  112.  Suits  on  bond — For  what  causes. — The  statute  pro- 
vides :  Any  executor  or  administrator  may  be  sued,  on  his  bond, 
by  any  creditor,  heir,  legatee,  or  surviving  or  succeeding  executor 
or  administrator,  co-executor  or  co-administrator  of  the  same 
estate,  for  any  of  the  following  causes,  viz. : 

1st.    Failure  to  inventory  the  property  of  the  decedent,  to  re- 

^  Pence  v.  Makepeace,  75  Ind.  480 ;  ^  Rubottom  v.  Morrow,  24  Ind, 
State  V.  Brown,  80  Ind.  425.  202,  87  Am.  Dec.  324. 

'^  State  V.  Mason,  21  Ind.  171. 


§    112  LIABILITY   OF    ADMINISTRATORS.  157 

turn  inventories,  appraisement  bills,  sale  bills,  reports,  and  ac- 
counts of  sale  according  to  law. 

2d.  Failure  to  pay  money  of  the  estate  into  court  according 
to  law. 

3d.    Failure  to  use  due  diligence  in  collecting  claims  due  the 

estate. 

4th.  Want  of  reasonable  care  in  taking  solvent  sureties  to  all 
obligations,  to  secure  the  purchase-money  of  any  of  the  property 
of  the  decedent. 

5th.  Embezzling,  concealing,  or  converting  to  his  own  use 
such  property. 

6th.  Negligently  permitting  any  of  the  property  of  the  dece- 
dent to  be  injured. 

7th.  For  committing  any  waste  upon  the  real  estate  of  the 
decedent,  or  knowingly  permitting  the  same  to  be  done,  when 
such  real  estate  is  in  his  possession  and  control  as  such  executor 
or  administrator. 

8th.  Failure  to  render  an  account  of  his  proceedings  when- 
ever required  by  the  court  or  the  provisions  of  this  act. 

9th.  Xon-compliance  with  any  order  of  the  court  touching 
the  estate. 

loth.    Any  other  violation  of  the  duties  of  his  trust."' 
In  a  suit  on  an  administration  bond  to  recover  assets  it  must 
be  made  to  appear  that  the  funds  or  property  sued  for  belonged 
to  the  estate  before  any  liability  on  the  bond  can  be  fixed. -^ 

And  in  cases  where  it  is  the  duty  of  an  executor  or  adminis- 
trator to  apply  funds  in  his  hands  without  a  demand,  no  demand 
is  necessary  before  bringing  suit  on  his  bond.-^ 

The  last  clause  in  this  statute,  following  the  specific  mention 
of  breaches  of  the  bond  for  which  suits  may  be  maintained,  is 
broad  enough  to  cover  all  and  any  other  breaches  or  dereliction 
of  duty  on  his  part  than  those  particularly  named. ^^ 

Where  an  administrator  pays  money  of  the  estate  in  his  hands 
on  the  general  debts  of  the  decedent,  not  leaving  enough  in  his 

^Burns'  R.  S.  1908,  §  2981.  ^  Pence  v.  Makepeace,  75  Ind.  480; 

^  Cullen  V.  State,  28  Ind.  App.  335,     Nelson  v.   Corwin,  59  Ind.  489. 
62  N.  E.  759.  ="  Stanton  v.   State,  82  Ind.  463. 


158  INDIANA  PROBATE  LAW.  §  112 

hands  to  pay  preferred  claims  and  liens,  a  suit  will  lie  on  his  bond 
for  the  benefit  of  claimants  whose  claims  should  have  been  paid 
first.^^ 

Before  judgment  can  be  had  in  a  suit  brought  under  the  first 
clause  of  this  statute,  it  must  be  alleged  and  proved  that  the  prop- 
erty the  executor  or  administrator  is  charged  with  neglecting  to 
inventory,  was  property  wliich  had  come  to  his  knowledge.^" 

A  suit  will  lie  upon  the  bond  of  an  administrator  who  accepts 
sale  notes  executed  by  insolvent  persons,  and  the  amount  of  such 
notes,  including  interest,  may  be  recovered,  but  after  judgment 
he  has  the  right  to  have  such  notes  turned  over  to  himself. '^^ 

As  has  been  shown  heretofore,  the  general  administration 
bond  secures  only  the  proceeds  of  the  personal  property  of  the 
decedent  and  the  proceeds  of  lands  directed  by  the  will  to  be  sold. 
For  any  misapplication  of  the  fund  arising  from  the  sale  of  real 
estate  resort  must  be  had  to  the  special  bond  given  to  secure  the 
proceeds  of  such  sale.^* 

Nor  will  the  sureties  upon  the  general  administration  bond  be 
liable  for  rents  and  profits  derived  from  the  decedent's  real  estate. 
The  administrator  is  not  entitled  to  the  rents  and  profits  of  land 
which  accrue  after  the  death  of  the  decedent.  These  belong  to 
the  heirs.^^ 

It  is  only  where  the  heir  or  devisee  is  not  present  and  there  is 
no  one  to  take  possession  of  or  care  for  a  decedent's  real  estate 
that  an  administrator  or  executor  is  authorized  to  rent  the  real 
estate,  and  in  such  case  he  must  account  for  the  rents  he  collects.^® 

In  case  of  his  misappropriation  of  such  rents  it  is  not  clear 
from  the  statutes  just  what  bond  would  be  liable.     It  is  probable 

''State  V.  Brown,  80  Ind.  425.  Hendrix    v.    Hendrix,    65    Ind.    329; 

'=  State  V.  Scott,  12  Ind.  529.  First  Nat.  Bank  v.   Hanna,    12    Ind. 

'"Lindley  v.  State,  116  Ind.  235,  18     App.  240,  39  N.  E.  1054;  Trimble  v. 

N.  E.  45.  Pollock,    n    Ind.    576;    McClead    v. 

'"State  V.  Barrett.   121   Ind.  92,  22     Davis.  83  Ind.  263;  Evans  v.  Hardy, 

N.   E.   969;   Hankins   v.   Kimball,  57     16  Ind.  527. 

Ind.  42.  '"Burns'  R.   S.  1908,  §§  2895,  2896, 

''Comparet  v.  Randall,  4  Ind.   55;     2935,  2936. 


§    113  LIABILITY    OF    ADMINISTRATORS.  159 

the  court  might  order  him  to  make  a  special  bond  to  cover  such 
rents." 

An  executor  or  administrator  who  deposits  money  of  the  estate 
in  bank  in  his  individual  name  will  be  held  liable  on  his  bond  for 
such  deposit  on  a  failure  of  the  bank.  The  rule  is  that  if  one 
holding  a  fiduciary  relation  makes  use  of  the  trust  funds  or  com- 
mingles them  with  his  own  that  he  shall  account  for  such  funds 
together  with  any  profits  realized,  and  this  rule  will  not  be  re- 
laxed in  favor  of  sureties.^® 

In  a  suit  upon  a  bond  of  an  administrator  something  more 
palpable  than  a  mere  delay  in  the  payment  of  a  claim  must  be 
proven  to  make  out  a  case  of  conversion.  The  administrator 
being  the  lawful  custodian  of  the  funds  more  than  a  demand  and 
a  refusal  to  pay  the  claim  must  be  shown  in  such  a  case.^® 

If  an  administrator  has  absented  himself  from  the  state  so  that 
service  cannot  be  had  upon  him,  suit  may  be  brought  against  the 
sureties  on  his  bond  alone." 

§  113.  Same — Averments  and  Evidence. — In  a  suit  upon 
the  bond  of  an  administrator,  assigning  for  breaches  thereof 
that  the  administrator  had  failed  and  refused  to  account  for  in- 
terest collected  by  him  on  moneys  due  the  estate,  that  he  had 
wrongfully  and  unjustly  withheld  distribution  from  the  heirs, 
that  he  wrongfully  and  unjustly  delayed  the  settlement  of  the 
estate,  is  sufficient  to  authorize  a  recovery  of  at  least  nommal 
damages.*^ 

When  an  administrator  resigns  his  trust  it  is  his  duty  to  pay 
the  money  in  his  hands  belonging  to  the  estate  into  court  or  to 
his  successor  in  the  trust;  failing  so  to  do,  an  action  will  lie 
against  him  upon  his  bond,  and  no  demand  is  necessar}^  previous 

^  State  V.   Barrett,   121    Ind.  92,  22  and    had,    for    that    cause,    been    re- 

N.  E.  969.  moved,  and  an  administrator  de  bonis 

»*  Dowling  V.  Feeley,  72  Ga.  557.  non  appointed.     No  citation  to  settle 

"Embree  v.   State,  85  Ind.  368.  could    avail."      See    also    Graham    v. 

*°  State,   ex    rel.,   v.    Porter,   9   Ind.  State,  7  Ind.  470,  65  Am.  Dec.  745. 

342.     In  this  case  it  is  said :     "It  is  "  Stanton  v.   State,  ex  rel.,  82  Ind, 

shown  that  the  administrator  had  left  463. 
the   state  with  money  in  his  hands, 


l6o  INDIANA    PROBATE    LAW 


113 


to  the  commencement  of  such  suit."  Formerly  an  administrator 
was  not  authorized  to  pay  money  of  the  estate  into  court,  and 
could  not  be  required  to  do  so  even  by  an  order  of  court."  But 
now,  by  statute,  it  is  made  his  duty  to  do  so." 

An  administrator  de  bonis  non,  who  has  obtained  a  judgment 
against  his  predecessor  and  his  sureties  for  conversion  by  the 
former  of  assets  of  the  estate,  may,  without  proceeding  to  collect 
such  judgment  from  the  sureties,  maintain  an  action  to  set  aside 
a  conveyance,  which  the  defaulting  administrator  had  fraudu- 
lently made,  of  land  purchased  with  trust  funds. ^^ 

In  a  complaint  on  a  bond  averred  to  have  been  executed  by 
order  of  the  court,  it  is  not  necessary  to  set  out  the  order,  as 
conformity  to  all  the  requirements  of  the  law  will  be  presumed 
in  favor  of  the  court  making  the  order,^"  nor  is  it  necessary  to 
show  the  removal  of  an  administrator  for  malfeasance  before 
suit  is  brought  upon  the  bond.*' 

Where  suit  on  an  administrator's  bond  is  brought  by  heirs, 
who  fail  to  allege  in  their  complaint  that  they  are  heirs  of  the 
intestate,  such  omission  is  cured  by  a  verdict  in  their  favor,  where 
the  record  of  the  pleadings  and  evidence  disclose  the  fact  of 
their  heirship;  and  the  final  report  of  the  administrator  showing 
the  plaintiffs  to  be  heirs  and  entitled  to  distribution,  is  sufficient 
proof  of  their  heirship.** 

It  is  a  sufficient  averment  of  a  breach  in  a  suit  upon  the  bond 
of  an  executor  or  administrator  that  he  had  assets  of  the  estate 
in  his  possession  and  under  his  control,  which  he  converted  to 
his  own  use  after  the  execution  of  the  bond.*® 

In  an  action  by  an  administrator  on  the  bond  of  a  former  ad- 

"^Lane  v.  State,  ex  rel.,  27  Ind.  108.  *' Duffy  v.   State,   115   Ind.   351,   17 

"Jenkins  v.  Lemonds,  29  Ind.  294.  N.  E.  615;  Harvev  v.  State,  123  Ind. 

"Burns'  R.   S.   1908,   §  2924.     Set-  260.  24  N.  E.  239' 

tlements  made  by  executors    or    ad-  *^  Owen   v.    State,   ex   rel.,   25   Ind. 

ministrators  on  resigning  their  trusts  371. 

need  not  be  set  aside  before  suits  will  *'  Owen   v.    State,   ex    rel.,   25    Ind. 

lie  on  their  bonds.     Parsons  v.   Mil-  371. 

ford,  67  Ind.  489;  Lang  v.   State,  ex  '^  Beal  v.   State,  77  Ind.  231. 

rel.,   67   Ind.   577.      See    Sanders    v.  "Owen  v.   State,  25  Ind.  371. 

Loy,  61  Ind.  298. 


§114  LIABILITY    OF    ADMINISTRATORS.  l6l 

ministrator  to  recover  money  received  by  such  administrator 
from  a  sale  of  the  decedent's  real  estate,  the  record  of  such  pro- 
ceeding is  admissible  in  evidence.  Parol  evidence  is  also  ad- 
missible to  prove  the  amount  of  money  actually  received  by  the 
administrator  from  the  sale.^*^ 

An  executor's  or  administrator's  current  account  is  prima  facie 
correct,  and  in  a  suit  upon  his  bond  is  evidence  of  the  amount 
in  the  hands  of  such  officer  at  the  time  the  account  was  filed.^^ 
The  final  settlement  of  an  executor  or  administrator  cannot  be 
opened  up  or  questioned  in  a  suit  upon  his  bond  for  the  reason 
that  so  long  as  it  remains  unappealed  from  and  has  not  been  set 
aside  such  final  settlement  is  conclusive,  except  in  cases  of  fraud 
or  mistake.'^" 

In  such  suits  the  reports  of  the  administrator  which  have  been 
filed,  but  not  yet  acted  upon,  are  competent  evidence  against  the 
administrator,  as  admissions  in  relation  to  the  disposition  and 
management  of  the  assets  of  the  estate.^^ 

§  114.  Same — Duty  as  to  surplus. — The  surplus  in  the 
hands  of  an  administrator  remaining  for  distribution  after  final 
settlement  of  the  estate,  which  remains  unclaimed  for  two  years 
after  the  filing  and  approval  of  the  final  report  of  such  adminis- 
trator, escheats  to  the  state,  and  an  administrator  who  then  fails 
or  refuses  to  pay  such  surplus  in  his  hands  into  the  proper  county 
treasury  for  the  use  of  the  state  becomes  liable  to  the  state,  upon 
his  bond,  for  that  amount." 

In  an  action  against  an  administrator,  if,  on  the  pleas  of  non- 

"  State,  ex  rel.,  v.  Lindley,  98  Ind.  "  State,  ex  rel.,  v.  Hughes,  15  Ind. 

48.    In  this  case  the  court  says:  "The  104;  Reed  v.  Reed,  44  Ind.  429;  Hol- 

appellant  had  the  unquestioned  right  land   v.    State,   ex   rel.,   48   Ind.   391. 

to    prove    by    parol    the    amount    of  Settlements  made  by  an  executor  or 

money  received  by  the  administrator  administrator  cannot  be  set  aside  or 

upon    the    sale    of    such    land.      This  opened  up  except  by  a  direct  proceed- 

may  have  been  much  more  than  was  ing.     Barnes  v.   Bartlett,  47  Ind.  98. 

shown  by  his  report,  and,  if  so,  there  "  Beal  v.   State,  11  Ind.  231. 

was  probably  no  other  way  by  which  "  Fuhrer  v.   State,  ex  rel.,  55  Ind. 

it  could  be  shown.   The  appellant  was  150;  State,  ex  rel.,  v.  Taggart,  88  Ind. 

not   concluded  by  the   report."  269. 

"  Lane  v.  State,  ex  rel.,  27  Ind.  108. 

11— PRO.L.A.W. 


l62  INDIANA    PROBATE    LAW.  §    I  1 5 

assumpsit  and  plene  administravit,  the  finding  is  against  the  ad- 
ministrator, the  amount  of  the  assets  remaining  in  his  hands 
unadministered  should  also  be  found. '°  If  by  mistake  an  item 
charged  against  an  administrator  be  not  litigated  in  a  suit  upon 
his  bond,  it  may  be  recovered  in  another  suit  upon  the  same 
bond.'^^ 

It  is  the  duty  of  an  administrator  to  pay  the  debts  of  his  in- 
testate, and  so  long  as  any  indebtedness  exists  a  creditor  cannot 
complain  that  the  administrator  does  not  pay  the  funds  of  the 
estate  into  court.'*' 

It  is  made  the  duty  of  an  administrator  to  account  to  the  court 
for  all  the  assets  which  come  to  his  hands,  and,  if  upon  final  set- 
tlement, any  such  assets  remain  undisposed  of.  it  is  his  duty  to  pay 
such  surplus  as  the  court  may  direct  and  failing  to  do  so  there  is 
a  breach  of  his  bond  for  which  suit  will  lie. 

§  115.  By  whom  suits  may  be  brought. — An  action  on  the 
bond  of  an  executor  or  administrator  must  be  brought  upon  the 
relation  of  some  person  beneficially  interested  in  the  estate,  and 
the  complaint  should  show  the  nature  of  such  interest.^^ 

The  statute  provides  that  such  suit  may  be  brought  by  and  on 
the  relation  of  any  such  creditor,  heir,  legatee,  surx'iving  or  suc- 
ceeding executor  or  administrator,  co-executor  or  co-adminis- 
trator; but  no  costs  shall  be  taxed,  in  such  proceeding,  against  the 
estate,  unless  it  be  brought  by  such  surviving  or  succeeding  ex- 
ecutor or  administrator  or  co-executor  or  co-administrator.^'* 

"King  V.  Anthony,  2  Blackf.  (Ind.)  Rounds,  59  Ind.  116,  it  is  said:    "Un- 

131;  Gaston  v.  Hiatt,  5  Blackf.  (Ind.)  der  the  provision  of  the  code  above 

44.  cited,  it  seems  to  us,  that  this  action 

'^  State,  ex  rel.,  v.  Brutch,   12  Ind.  was  improperly  brought;  that  the  ap- 

381.  pellee  could  neither  bring  nor  main- 

■"  State,  ex  rel.,  v.  Lemonds,  29  Ind.  tain  an  action   in   his   own   name  on 

^^T-  the  bond  in  suit,  and  that  the  action 

^  Songer  v.   Manwaring,   1   Blackf.  could    only    be    maintained    on    said 

(Ind.)  251;  Burns'  R.  S.  1908,  §  253;  bond  in  the  name  of  the  state  of  In- 

Eaton  V.  Benefield,  2  Blackf.    (Ind.)  diana,  as  plaintiff,  on  the  relation  of 

52;     Nicholson    v.    Carr,    3    Blackf.  the  proper  trustee  of  the  trust  estate, 

(Ind.)   104;  Neal  v.  State,  49  Ind.  51 ;  and  for  the  use  of  the  persons  'injured 

Yater  v.  State.  58  Ind.  299;  Potts  v.  by  the  action'  of  the  former  trustee." 

State,    65    Ind.    273.      In    Jackson    v.  °' Burns'  R.  S.  1908,  §  2982. 


§    115  LIABILITY   OF    ADMINISTRATORS.  1 63 

A  devisee  may  maintain  an  action  upon  the  bond  of  an  execu- 
tor or  administrator  for  a  conversion;  and  in  case  of  the  insol- 
vency of  the  principal,  and  the  death  of  the  surety,  in  such  bond, 
the  right  of  action  is  against  the  personal  representatives  of  the 
deceased  surety.^*' 

A  suit  upon  the  bond  of  an  administrator  may  be  maintained 
by  the  heirs  of  the  intestate;  and  such  suit  may  be  brought 
against  one  or  all  of  the  obligors  upon  such  bond,  at  the  option 
of  the  plaintiff.*'^  A  judgment  recovered  in  such  action  is  not 
a  personal  one  in  favor  of  the  heirs  suing,  but  accrues  to  the 
benefit  of  the  entire  estate. 

At  common  law  a  suit  would  not  lie  on  the  relation  of  an  ad- 
ministrator de  bonis  non  against  a  former  administrator  or  ex- 
ecutor on  his  bond,  or  against  his  personal  representatives  after 
his  death,  for  any  property  of  the  decedent  that  such  predecessor 
may  have  converted  or  wasted."'  And  this  rule  of  law  formerly 
prevailed  in  this  state.®^  But  such  suit  is  now  provided  for  by 
the  statute  under  consideration.®* 

In  a  suit  upon  the  bond  of  an  administrator,  brought  on  the 
relation  of  a  creditor,  it  is  not  necessary  to  make  other  unpaid 
creditors,  nor  the  administrator  of  the  defaulting  administrator, 
parties  to  the  action.*'^  In  such  case  the  better  practice  would  be 
to  appoint  an  administrator  de  bonis  non,  in  the  place  of  the  de- 
faulting deceased  former  administrator,  and  have  the  action 
brought  in  his  name,  and  in  this  way  avoid  complications  which 
might  otherwise  arise,  where  the  creditors,  only,  sue  upon  the 
bond  of  such  deceased  administrator. 

Where  a  suit  is  brought  by  a  creditor  for  a  failure,  upon  the 
part  of  the  administrator,  to  pay  his  claim,  proof  of  a  demand 

"Nelson  v.  Corwin,  59  Ind.  489.  Blackf.   (Ind.)   167;   State,  ex  rel.,  v. 

"State,  ex  rel.,  v.  Bennett,  24  Ind.  Gooding,  8  Blackf.   (Ind.)   567;  Gra- 

383;  Burns'  R.  S.  1908,  §  271.  ham  v.   State,  ex  rel,  7  Ind.  470,  65 

•-Hagthorp   v.   Hook,    1    Gill   &   J.  Am.  Dec.  745. 

(Md.)   270;  3  Bacon's  Abridgement,  "^  Myers   v.   State,   ex  rel,  47   Ind. 

19,  20.  293. 

"Anthony    v.     McCall,    3    Blackf.  "  Embree  v.  State,  ex  rel,  85  Ind. 

(Ind.)     86;     Young    v.     Kimball,    8  368. 


l64  INDIANA  PROBATE  LAW.  §  1x6 

and  failure  to  pay  is  not  sufficient  proof  of  a  conversion  of  the 
assets.*"' 

The  widow  is  an  heir  within  the  meaning  of  the  statute  and 
may  maintain  an  action  upon  the  bond  of  an  administrator  of  her 
deceased  husband  for  the  recover)^  of  the  value  of  the  personal 
property  allowed  her  by  law."' 

Proof  that  an  administrator  paid  the  widow  more  than  she 
was  entitled  to,  or  paid  some  claims  in  full  when  the  assets  of  the 
estate  were  insufficient  to  pay  all,  will  not  sustain  an  allegation 
that  he  converted  the  money  of  the  estate  to  his  own  use.*^^ 

§  116.  Same — Continued. — Only  those  who  have  been  in- 
jured by  a  breach  of  an  administrator's  bond  can  maintain  a  suit 
upon  such  bond,  and  when  such  suit  is  brought  by  the  heirs,  or 
next  of  kin,  it  must  appear  that  there  has  been  a  final  settlement 
of  the  estate,  a  sum  due  them  as  heirs  or  distributees,  and  a  re- 
fusal of  the  administrator  to  properly  account  for  and  pay  over 
the  same.®* 

Sureties  upon  such  bond  have  no  such  interest  in  the  estate  as 
will  entitle  them  to  bring  suit  upon  the  bond  of  their  principal 
for  a  failure  on  his  part  to  perform  its  conditions.^*' 

An  administrator  de  bonis  non  may  maintain  an  action  against 
the  sureties  of  the  former  administrator  to  recover  an  admitted 

•^  Embree  v.  State,  ex  rel.,  85  Ind.  "  State    v.    Mason,    21     Ind.     171 ; 

368.    In  this  case  it  is  said:     "When  Walker  v.  Prather,  3  Ind.  112. 

personal  property  has  been  tortiously  '^  State,  ex  rel.,  v.  Lemonds,  29  Ind. 

taken,  or  unlawfully  detained,  a  de-  437. 

mand  for  its  possession  by  the  owner,  *"  Neal  v.  Becknell,  85  N.  Car.  299 ; 

supplemented  by  a  refusal  to  return  Peveler  v.  Peveler,  54  Tex.  53 ;  Weihe 

or  deliver  up  the  property,  is  usually  v.   Stratham,  67  Cal.  84,  7  Pac.   143. 

accepted     as     sufficient    evidence     to  A  surety  upon  the  bond  of  an  exe- 

prove   a   conversion  of  the   property  cutor,  who  is  also  residuary  legatee, 

so  taken  or  detained;  but  more  than  is   released  by  the   act   of   a   legatee 

a  demand  and  a  refusal  to  pay  must  who,   without   the   surety's   assent   or 

be   shown,   to   establish   a   conversion  procurement,  accepts  the  note  of  the 

in  a  case  like  this,  where  the  adminis-  executor  in  settlement  of  the  amount 

trator  is  the  lawful  custodian  of  the  of  the  legacy.     Durfee  v.  Abbott,  50 

assets,  and  where  no  specific  article  Mich.  479,  15  N.  W.  559. 

of  property  is  sued  for."  '"  Bunnell  v.  Municipal  Court,  9  R. 

I.  189. 


§    Il6  LIABILITY    OF    ADMINISTRATORS.  1 65 

or  proved  balance  due  from  such  administrator,  without  first  re- 
covering a  judgment  against  the  principal.''^ 

Sureties  on  an  administrator's  bond  cannot  protect  themselves 
by  showing  that  the  bond  was  not  approved. '^^ 

In  a  suit  against  one,  who  is  administrator,  as  a  surety  on 
the  bond  of  his  deceased  predecessor,  he  cannot  be  held  liable  for 
money  which  came  into  his  hands  as  such  successor.^^ 

A  failure,  on  the  part  of  an  executor  or  administrator  with  the 
will  annexed,  to  pay  a  legacy  will  render  him  liable  to  a  suit  on 
his  bond,  and  such  suit  may  be  maintained  without  any  previous 
order  of  court  directing  the  payment  of  such  legacy,  nor  is  it 
necessary  that  the  executor  should  be  removed  prior  to  the  bring- 
ing of  such  suit.'* 

Neither  administrators  nor  executors  can  be  held  liable  for  the 
acts  of  mismanagement  or  omission  of  co-executors  or  adminis- 
trators in  matters  with  which  they  had  nothing  to  do  and  are  in 
no  wise  culpable;  and  each  is  liable  only  for  the  assets  of  the 
estate  which  came  into  his  hands." 

But  where  mismanagement  of  a  certain  part  of  the  estate  is 
shown,  and  it  appears  that  by  agreement  of  all  the  executors 
the  business  of  this  particular  part  should  be  attended  to  by  one 
of  them,  they  will  all  be  held  liable  for  such  mismanagement.'*^ 

^  Badger  v.  Jones,  66  N.  Car.  305 ;  done  some  act  which  the  law  consid- 

Wickham     v.     Page,     49     Mo.     526;  ers  as  equivalent  to  an  admission  that 

Franklin  County  v.  McElvain,  5  Ohio  the   assets   were   in   their   hands   and 

200.  power,   and  culpably   and  negligently 

"Mundorf   v.    Wangler,   44   N.    Y.  parted  with."     Hall  v.   Boyd,   6   Pa. 

Super.  495.  St.  267.     Nor  does  the  fact  that  the 

"Poeple  V.  Allen,  86  111.   166.  executors    are    trustees    as    well    as 

'*  Gould     V.     Steyer,    75     Ind.    50;  executors  make  any  difference  as  to 

Heady  v.  State,  ex  rel.,  60  Ind.  316;  their  liability  for  each  other.     Banks 

Owen  V.  State,  ex  rel.,  25  Ind.  371.  v.  Wilkes,  3   Sanf.  Ch.    (N.  Y.)   99; 

"Call   V.   Ewing,   1   Blackf.    (Ind.)  Ormiston  v.  Olcott,  84  N.  Y.  339. 

301;     Ray     v.     Doughty,    4     Blackf.  '' .-\llen   v.    Shanks,   90   Tenn.   359, 

(Ind.)   115;  Davis  v.  Walford,  2  Ind.  16  S.  W.  715.     An  executor  who  al- 

88;    Braxton    v.    State,    25    Ind.    82;  lowed     his     co-executors     to     retain 

State   V.    Wyant,   67  Ind.  25.     "They  funds  of  the  estate  for  a  long  time 

are  liable,  personally  and  individual-  without  seeing  to  their  proper  invest- 

ly,  no  further  than  assets  have  come  ment   is    responsible    for  the   loss   of 

into  their  hands,  or  where  they  have  such  funds.     Hays  v.  Hays,  3  Tenn. 


l66  INDIANA  PROBATE  LAW.  §  Il6 

The  refusal  of  a  defaulting  administrator  to  pay  to  sureties 
upon  his  bond,  on  their  demand,  money  which  they  have  been 
compelled  to  pay  in  settlement  of  his  defalcation,  does  not  ren- 
der such  administrator  guilty  of  embezzlement.  As  such  sure- 
ties they  are  interested  that  he  shall  act  honestly,  but  they  have 
no  interest  in  the  estate.  His  refusal  to  repay  to  them  the  amount 
which  they  have  been  compelled  to  pay  in  settlement  of  his  de- 
falcations is  a  moral  and  reprehensible  wrong,  but  it  is  not,  under 
the  statute,  a  punishable  crime. ^^ 

An  action  by  an  administrator  de  bonis  non  on  a  bond  of  his 
predecessor  will  lie,  when  the  complaint  shows  that  such  former 
administrator  received  money  from  the  sale  of  real  estate  of  his 
intestate  for  which  he  has  refused  to  account,  and  that  he  still 
has  the  money  in  his  hands.''* 

The  only  right  of  action  given  to  an  administrator  de  bonis 
non  for  a  conversion  of  any  part  of  the  assets  of  the  estate  by 
his  predecessor  is  the  one  given  by  this  statute  under  considera- 
tion, an  action  on  the  official  bond  of  such  predecessor.  He  can- 
not sue  his  predecessor,  or,  in  case  of  his  death,  his  personal  rep- 
resentative, for  any  part  of  the  estate  sold,  converted  or  wasted 
by  him.'®  And  in  a  suit  by  such  administrator  he  need  only  aver 
that  he  is  administrator,  and  his  right  to  sue  cannot  be  questioned 
except  by  a  plea  in  abatement  denying  the  right. ^° 

This  statute  has  been  so  frequently  construed,  that  the  objec- 
tion that  an  administrator  de  bonis  non  cannot  prosecute  actions 
on  the  bonds  of  his  predecessor  in  the  trust  is  without  founda- 
tion.'^ 

Ch.  88.    See  also  Wood  v.  Brown,  34  "  Ormes'  Estate  v.  Brown,  22  Ind. 

N.  Y.  337;  Weigand's  Appeal,  28  Pa.  App.  569,  52  N.  E.  1005. 

St.   471.     One    executor   allowed   his  *"  Michigan  Trust  Co.  v.  Probasco, 

co-executor  to  act  as  receiver  without  29  Ind.  App.  109,  63  N.  E.  255. 

supervising  him  with   due  care.     He  "  Graham   v.    State,   7  Ind.   470,  65 

was  held  responsible  for  the  misman-  Am.  Dec.  745;  State  v.  Porter,  9  Ind. 

agement  of  the  co-executor.     Cress-  342 ;  Myers  v.  State,  47  Ind.  293 ;  Day 

man's  Estate,  2  Phila.  (Pa.)  76.  v.    Worland,    92    Ind.    75;    Lucas    v. 

"State  V.  Adamson,   114  Ind.   216,  Donaldson,   117  Ind.   139,    19    N.    E. 

16  N.  E.  181.  758;  Sheeks  v.  State,  156  Ind.  508,  60 

^'Lindley  v.  State,  115  Ind.  502,  17  X.   E.   142. 
N.  E.  611. 


§    117  LIABILITY    OF    ADMINISTRATORS.  I67 

§  117.  Defenses  to  suits. — An  answer  by  an  administrator 
to  a  complaint  on  his  bond  in  an  action  brought  by  a  creditor  for 
a  failure  to  pay  his  claim,  that  there  were  no  assets  of  the  estate 
in  the  hands  of  such  administrator  out  of  which  to  pay  such 
claim,  is  a  good  answer  in  bar  of  the  action.^' 

A  paragraph  of  answer  to  a  complaint  on  an  administrator's 
bond  alleging  that  he  has  fully  administered  the  estate  of  the 
decedent,  and  all  the  rights,  credits,  moneys  and  effects  of  said 
estate  which  came  into  his  hands  to  be  administered,  and  that 
the  estate  is  indebted  to  him  in  a  sum  named,  shows  that  he  has 
fully  administered  and  properly  paid  out  and  accounted  for  the 
assets  which  came  into  his  hands  as  administrator;  but  the  an- 
swer is  subject  to  a  motion  to  make  more  specific." 

To  a  complaint  on  an  administrator's  bond  against  the  sure- 
ties, an  answer  that  before  breach  the  sureties  were  released  by 
order  of  the  proper  court  and  that  a  new  bond  was  given,  is  held 
sufficient  on  demurrer.*** 

And  where  an  administrator  has  made  a  sale  of  his  intestate's 
real  estate,  and  afterward  a  suit  is  brought  upon  his  general 
bond,  the  complaint  in  such  action  alleging,  for  breaches  of  such 
bond,  failure  to  pay  over  money,  conversion,  waste,  etc.,  with- 
out specifying  to  which  fund  such  breaches  apply,  if  good  at  all, 
is  only  good  for  the  recovery  of  nominal  damages;  and  an  an- 
swer to  such  complaint,  that  the  administrator  had  duly  admin- 
istered all  the  personal  property  belonging  to  the  estate,  is  suf- 
ficient, for  the  reason  that  if  all  the  personal  estate  was  duly  ad- 

"  State  V.  White,  33  Ind.  298.  liad  not  had  the  balance  due  the 
"  State  V.  Barrett,  121  Ind.  92,  22  estate  in  his  possession  or  control, 
N.  E.  969.  had  not  concealed  it,  and  had  no 
"State  V.  Gregory,  88  Ind.  110;  power  to  restore  it  nor  means  with 
State,  ex  rel.,  v.  Lemonds,  29  Ind.  which  to  secure  its  restitution,  was 
437.  In  a  prosecution  against  a  re-  held  to  constitute  a  good  defense,  the 
moved  executor  for'  retaining  and  prosecution  being  treated  as  brought 
concealing  assets  of  the  estate,  an  under  §§  30  and  161  of  the  act  con- 
answer  showing  that  whatever  wrong  cerning  the  settlement  of  decedents' 
had  been  done  was  fully  accomplished  estates  (2  R.  S.  1852,  pp.  254,  285). 
before  the  defendant's  removal  from  Phelps  v.  Martin,  74  Ind.  339. 
his   trust;   that   since  his   removal   he 


1 68  INDIANA    PROBATE    LAW.  §    Il8 

ministered,   the  condition  of  the  general  bond   was   fully  per- 
formed.^^ 

It  is  no  defense  in  an  action  on  the  bond  of  an  executor  or 
administrator  against  the  sureties  for  such  sureties  to  show  that 
such  executor  or  administrator  was  solvent  for  a  lonsr  time  after 
the  receipt  of  the  funds  alleged  to  have  been  converted  by  him, 
and  that  the  amount  could  have  been  recovered  then  by  prompt 
action.®* 

§  118.  Same — Right  to  counterclaim. — An  administrator 
has  the  right  to  apply  any  money  in  his  hands  belonging  to  the 
estate  to  the  liquidation  of  claims  against  such  estate,  and  is  en- 
titled, in  his  account  with  the  estate,  to  credit  for  all  such  pay- 
ments. Such  payments  can  be  pleaded  as  a  counterclaim  in  a 
suit  upon  the  bond  of  such  administrator." 

An  administrator  has  the  right  to  deduct  from  the  share  of  a 
distributee,  in  his  hands,  the  amount  of  a  debt  due  from  the  dis- 
tributee to  the  estate  of  the  decedent.  This  is  usually  termed  the 
right  of  set-off,  but  the  use  of  the  term  in  such  case  is  inaccurate. 
The  court  says :  "The  ground  upon  which  an  administrator  is 
entitled  to  retain  so  much  of  the  distributive  share  of  a  dis- 
tributee as  will  satisfy  a  debt  due  from  the  latter  to  the  estate  is, 
that  the  heir  or  distributee  makes  a  demand  upon  the  adminis- 
trator in  respect  to  assets  in  his  hands  as  administrator,  and  the 
just  and  equitable  answer  in  such  a  case  is  that  the  person  mak- 
ing the  demand  has  already  in  his  hands  assets  belonging  to  the 
estate  in  excess  of  the  amount  of  the  distributive  share  which  he 
is  demanding."^® 

A  note  owing  to  the  estate  by  the  judgment  plaintiff  and  due 
and  unpaid  can  not  be  pleaded  as  a  set-off,  by  the  administrator, 
in  such  an  action.*^ 

^  State  V.  Cloud,  94  Ind.   174.  Mellett,  121  Ind.  585,  23  N.  E.  95,  7 

'"Owen  V.   State,  25  Ind.  371.  L.  R.  A.  231n;  Woerner  Law  Admin., 

*' State  V.  Barrett,   121   Ind.  92,  22  §  564;  Waterman  on   Set-off,  §  210; 

N.  E.  969.  Fisciis    v.    Fiscus,    127    Ind.    283,    26 

''Fiscus  V.  :Moore,  121  Ind.  547,  23  N.  E.  831. 

N.  E.  362,  7  L.  R.  A.  235 ;  Koons  v.  ''  Pence  v.  Makepeace,  75  Ind.  480. 


119 


LIABILITY    OF    ADMINISTRATORS.  1 69 


The  right  of  set-off  includes  any  sum  due  the  estate  on  account 
of  surety  debts  existing  at  the  decedent's  death. ®° 

The  cases  differ,  though  the  weight  of  authority  favors  the 
right  of  set-off,  as  to  whether  an  administrator  has  any  prior 
right  to  demand  payment  of  a  debt  due  from  an  insolvent  heir  to 
the  intestate  out  of  the  land  inherited  by  such  heir,  either  in  his 
hands,  or  that  of  his  vendee  or  an  attaching  creditor  of  the  heir. 
In  this  state  it  has  been  held  that  for  purposes  of  equalization 
among  the  heirs,  there  exists  a  lien  and  a  right  to  have  such  por- 
tion as  goes  to  the  heirs,  whether  real  or  personal  property,  ap- 
plied to  the  payment  of  a  debt  due  from  the  heir  to  the  estate. 
Realty  being  on  the  same  footing  as  personalty,  the  lien  is  in  fa- 
vor of  the  estate  being  paramount  to  the  rights  of  an  alienee  of 
the  indebted  heir.®^ 

§  119.  Measure  of  damages  in  suit  on  bond. — The  measure 
of  damages  in  all  such  suits  shall  be  the  value  of  the  property 
converted,  destroyed,  embezzled,  or  concealed;  the  injury  sus- 
tained by  the  estate,  or  any  person  interested  therein;  interest 
on  money  retained;  such  exemplars-  damages  as  the  court  or 
jur>'  trying  the  case  may  be  willing  to  give,  and  ten  per  centum 
on  the  whole  amount  assessed.*" 

As  a  measure  of  damages  certain  items  are  imperatively  re- 
quired by  this  statute  to  be  taken  into  consideration  in  fixing  the 
amount  of  the  recovery  in  an  action  upon  the  bond  of  an  executor 


»«  T.', 


'Koons  V.  Mellett,  121  Ind.  585,  23  495.     The  judgment  must  be  for  the 

N.  E.  95.  7  L.  R.  A.  231n:  Taylor  v.  entire  liability  on  the  bond,  and  the 

Jones,  97  Ky.  201.  30  S.  W.  595.  money    collected    and    brought    into 

"New  V.  Xew.  127  Ind.  576,  27  X.  court    for    distribution.       Moody     v. 

E.    154:    Oxsheer   v.    Nave,   90   Tex.  State,  ex  rel.,  84  Ind.  433.     The  10 

568,   40   S.   W.    7,   37   L.    R.    A.   98;  per  cent,  penaltj-  can  only  be  added 

Hopkins  V.  Thompson.  73  Mo.  App.  when    money   or   property-   has   been 

401  ;    Streety    v.    McCurdy.    104    Ala.  converted,    destroyed,    embezzled    or 

493.  16  So.  686.  concealed.      Buchanan    v.    State,    ex 

-^Burns'  R.   S.   1908,   §  2982.     Ten  rel.,   106  Ind.  251,  6  N.  E.  614.     As 

per   cent,    should    be    added    to    the  against   sureties  the  damages   cannot 

whole   amount   of   damages   assessed,  exceed     the    penalty    of    the    bond. 

Potter  V.   State,  ex  rel.,  23  Ind.  607;  Meadows  v.    State,   ex   rel.,    114  Ind- 

Baldridge    v.    State,    ex    rel.,   69    Ind.  5:^7.  17  X.  E.   121. 
166:  Stroup  v.  State,  ex  rel..  70  Ind. 


170  INDIANA  PROBATE  LAW.  S  120 

or  administrator.  Upon  the  aggregate  value  of  the  property  con- 
verted, destroyed,  embezzled,  or  concealed,  or  money  retained, 
interest  should  be  computed  at  the  legal  rate,  and  to  the  sum  thus 
ascertained  ten  per  cent,  should  be  added.  In  addition  to  these 
sums,  the  court  or  jury  is  invested  with  the  discretionary  power 
to  assess  exemplar)-  damages.  The  statute  does  not  impose  a 
limit  upon  the  discretion  conferred,  but  it  should  be  construed 
to  mean  a  sound  legal  discretion,  the  exercise  of  which,  in  a 
proper  case,  is  to  be  governed  by  the  facts  and  circumstances  at- 
tending each  case.  If  exemplary  damages  are  assessed  the 
amount  should  be  added  to  the  aggregate  amount  before  the  ten 
per  cent,  is  added,  as  that  is  to  be  added  to  the  whole  amount 
assessed.®^ 

§  120.    Judgment  without  relief  or  stay  of  execution. — No 

stay  of  execution  or  benefit  of  valuation  or  appraisement  laws 
shall  be  allowed  on  a  judgment  on  such  bond  as  to  the  property 
of  the  principal;  and  all  damages  so  collected  shall,  by  the  officer 
collecting  the  same,  be  paid  into  the  proper  court,  when,  after 
deducting  and  paying  to  the  relator  in  such  suit  a  reasonable  com- 
pensation for  his  services  therein,  it  shall  be  disposed  of  accord- 
ing to  the  laws  regulating  the  distribution  of  the  property  of  the 
decedent.®* 

It  would  seem  from  the  reading  of  this  statute  that  a  judg- 
ment on  such  bond,  when  taken  against  both  the  principal  and 
surety  therein,  is  non-repleviable  and  without  relief,  only  as  to 
the  principal  in  such  bond,  but  an  act  was  approved  December 
21,  1858,  amending  §  429,  page  133,  vol.  2,  R.  S.  1852.  The 
section  as  amended  reads  as  follows :  "Hereafter  all  judgments 
recovered  against  any  sheriff,  constable  or  other  public  officer, 
administrator,  executor  or  any  other  person  or  corporation,  or  the 
sureties  of  any  or  either  of  them,  for  money  collected  or  received 
in  a  fiduciary  capacity,  or  for  a  breach  of  any  official  duty,  or  for 
money  or  other  article  of  value  held  in  trust  for  another,  shall  be 

^'  Colburn  v.  State,  ex  rel.,  47  Ind.     Ind.  166 ;  Goldsberry  v.  State,  ex  rel., 
310;    Raid   v.   State,   ex   rel.,  58  Ind.     69  Ind.  430. 
406;    Baldridge  v.    State,   ex   rel.,   69        "Burns'  R.  S.  1908,  §  2983. 


§    I20  LIABILITY   OF   ADMINISTRATORS.  1 7^ 

collectible  without  stay  of  execution  or  benefit  of  the  valuation 
or  appraisement  laws  of  this  state."*'  These  statutes  construed 
together  certainly  authorize  a  non-repleviable  judgment  against 
both  principal  and  surety  upon  the  bond  of  an  executor  or  ad- 
ministrator, and  allow  neither  the  benefit  of  valuation  and  ap- 
praisement laws;  and  the  proceeds  of  such  judgment  belong  to 
the  estate,  and  must  be  retained  in  court  until  all  the  indebted- 
ness of  the  estate  is  paid,  and  the  surplus,  if  any,  shall  be  dis- 
tributed to  those  entitled  thereto."" 

No  stay  of  an  execution  shall  be  allowed  upon  any  judgment 
recovered  against  any  officer,  person  or  corporation,  or  the  sure- 
ties of  any  of  them,  for  money  received  in  a  fiduciary  capacity 
or  for  a  breach  of  any  official  duty.  The  clerk  shall  issue  exe- 
cutions upon  such  judgments  forthwith,  returnable  in  ninety  days 
and  indorsed  not  repleviable,  and  it  shall  be  so  ordered  in  the 
judgment.*^ 

'^  Burns'  R.  S.  1908,  §  604 ;  Bunnell  is  not   afifected  by  the   fact  that  the 

V    State,  15  Ind.  145.  clerk  had  so  misnamed  the  parties  in 

-  Moore   v.   State,  ex   rel.,  49   Ind.  the  order-book  and  dockets  that  they 

•^SS-  Owen  v.   State,  ex  rel.,  25  Ind.  would   not   indicate  the  pendency  of 

371 '    The  priority  of  a  lien  to  which  such  suit,  if  the  mortgagor  was  not 

a    judgment    on    an    administrator's  misled  thereby.     Day  v.  Worland,  92 

bond  is  entitled,  over  a  mortgage  ex-  Ind.  75. 

ecuted  after  the  beginning  of  the  suit,  "  Burns'  R.  S.  1908,  §  741. 


CHAPTER    VIII. 


REVOCATION    OF    LETTERS    AND    REMOVAL. 


i  121.  Letters  not  subject  to  collateral 
attack. 

122.  Authority,  how  terminated. 

123.  Right  of  resignation. 

124.  Who  may  apply  and  for  what 

causes. 

125.  Same — Statute  construed. 

126.  Where  letters  have  been  issued 

out  of  statutory  order. 

127.  Causes     for     removal — Neglect 

to  file  inventory. 

128.  Same — Drunkenness     and     im- 

becility. 

129.  Same — For      failure     to      give 

bond,  or  to  account. 

130.  Same — Non-residence. 

131.  Same — Effect  of  marriage. 


§  132.  Application    for    removal — No- 
tice, etc. 

133.  Same — Notice  by  publication. 

134.  Who  may  move  for  revocation 

or  removal. 

135.  Defenses  to  application. 

136.  Hearing     on     application  —  No 

jury. 

137.  Same  continued. 

138.  The    hearing   a    summary   pro- 

ceeding—  No        change        of 
venue. 

139.  Judgment,  costs,  appeals,  etc. 

140.  Effect  of  removal. 

141.  Intermeddling    and    embezzle- 
ment after  removal. 
142.  Acts  legalized. 


§  121.  Letters  not  subject  to  collateral  attack. — Where 
letters  have  been  issued  by  a  court  ha\ing  jurisdiction  for  that 
purpose,  such  letters,  so  long  as  they  remain  unrevoked,  are  con- 
clusive evidence  of  the  authority  of  the  executor  or  adminis- 
trator to  whom  they  are  granted,  and  they  cannot  be  collaterally 
impeached  even  for  fraud,^  in  one  case  it  being  said :  "No  prin- 
ciple of  our  jurisprudence  is  more  firmly  established  than  the 


'Simmons  v.  Saul.  138  U.  S.  439, 
34  L.  ed.  1054,  11  Sup.  Ct.  369;  Fer- 
guson V.  State,  90  Ind.  38;  Michigan 
Trust  Co.  V.  Probasco,  28  Ind.  App. 
109,  63  N.  E.  255;  Sadler  v.  Sadler, 
16  Ark.  628;  Johnson  v.  Johnson's 
Estate,  66  Mich.  525,  33  N.  W.  413; 
Mills  v.  Herndon,  77  Tex.  89,  13  S. 
W.  854. 


Want  of  authority  of  an  adminis- 
trator to  maintain  an  action  because 
of  defect  in  his  bond  for  want  of 
proper  sureties  cannot  be  urged  as  a 
defense  to  an  action  because  it  is  a 
collateral  attack  on  the  judgment  of 
the  probate  court.  Beresford  v. 
American  Coal  Co.,  124  Iowa  34,  98 
N.  W.  902. 


172 


§    121  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 73 

following:  'Letters  of  administration  make  full  proof  of  the 
party's  capacity  until  they  be  revoked.  They  must  have  their 
effect,  and  the  regularity  of  the  proceedings  on  which  they  are  is- 
sued cannot  be  examined  collaterally.'  "^ 

From  the  fact  that  until  letters  are  revoked  by  a  court  of  com- 
petent jurisdiction,  they  cannot  be  questioned,  it  follows,  there- 
fore, that  the  acts  of  an  executor  or  administrator  under  the 
letters  are  valid  even  though  the  probate  of  the  will  or  the  grant 
of  letters  was  erroneous,  or  they  were  obtained  upon  fraudulent 
representations,  or  even  under  a  forged  will.^  The  rule  is  differ- 
ent if  the  letters  are  granted  by  a  court  having  no  jurisdiction  to 
issue  them.  Such  letters  are  void  and  give  no  validity  to  acts 
done  under  them.    An  appointment  so  made  is  a  nullity.'' 

Where  the  court  has  granted  letters  of  administration,  the 
legal  presumption  exists  that  the  action  of  the  court  was  right, 
and  the  burden  is  upon  those  assailing  such  right  to  prove  that 
there  was  no  necessity  for  administration,  or  that  the  grant  of 
letters  was  wrongful,  or  erroneously  made.'' 

-  Duson  V.  Dupre.  32  La.  Ann.  896.  cninty.    Zeigler  v.  Storey,  220  Pa.  471, 

The  appointment  of  an  administra-  69  Atl.  894. 

tor    cannot    be    collaterally    attacked  *  Holyoke     v.     Haskins,     5     Pick, 

because   the   petition    for   administra-  (Mass.)    20,    16   Am.    Dec.   372;    Ex 

tion   fails  to  allege  the  death  of  the  parte  Barker,  2  Leigh   (Va.)  719. 

intestate.      Manning   v.    Leighton,    65  The  appointment  of  an  administra- 

Vt.  84,  26  Atl.  258,  24  L.  R.  A.  684n.  tor  by  a  court  of  competent  jurisdic- 

"Schluter  v.  Bowery  Sav.  Bank,  117  tion,  is  not  open  to  collateral  attack 

N.  Y.  125,  22  N.  E.  572,  15  Am.  St.  in  a  suit  by  the  administrator  to  col- 

494.   5   L.   R.   A.    541n ;   Kittredge   v.  lect  assets,  on  the  ground  that  it  was 

Folsom.  8  N.  H.  98;  Smith  v.  Smith,  void  for  want  of  assets  in  the  state. 

168   111.   488,   48   N.   E.   96;    Reed   v.  Jordan    v.    Chicago    &c.    R.    Co.,    125 

Reed.    91    Ky.    267,    15    S.    W.    525;  Wis.  581,  104  N.  W.  803,  110  Am.  St. 

Franklin  v.  Franklin,  91  Tenn.  119,  18  865,  1  L.  R.  A.  (N.  S.)  885. 

S   W  61  "Bowen   v.    Stewart,    128   Ind.   507, 

The  appointment  of  an  administra-  26  N.  E.  168,  28  N.  E.  1Z;  Wallis  v. 

tor  upon  a  finding  of  the  decedent's  Cooper,  123  Ind.  40,  23  N.  E.  977. 

death  and  the  possession  of  property  The  judgment  of   a  probate   court 

within  the  county  is  conclusive  of  the  granting  letters  to   a  widow  will  be 

authority   of   the   court  to   make   the  upheld,  although  the  sole  assets  of  the 

appointment  until  set  aside  on  direct  estate  consisted  of  a  claim  agamst  a 

attack,  although  a  will  is  found  and  railroad    company    for    causing    the 

subsequently     probated     in     another  death  of  her  husband.   Missouri  Pac. 


174  INDIANA  PROBATE  LAW.  §  122 

§  122.  Authority,  how  terminated. — Letters  having  been 
issued  out  of  the  proper  court,  the  authority  of  an  executor  or 
administrator  under  them  may  be  extinguished  in  several  ways. 
It  may  be  terminated  by  the  voluntary  act  of  the  executor  or 
administrator;  that  is,  by  his  resignation.  The  death  of  the 
officer  ends  his  authority,  although  neither  death  nor  resignation 
relieves  an  executor  or  administrator  or  their  estates  from  the 
obligation  to  account  for  the  estate  in  their  hands.  The  authority 
of  such  an  officer  is,  of  course,  terminated  upon  a  final  settle- 
ment of  the  estate  entrusted  to  him  and  his  discharge  by  the 
proper  probate  court. 

If  the  letters  granted  are  voidable  for  any  reason,  the  court 
making  the  appointment  may,  upon  the  proper  application  and 
showing,  revoke  such  letters  and  remove  the  executor  or  adminis- 
trator; or  the  trust  may  be  terminated,  so  far  as  the  particular 
individual  is  concerned,  by  his  removal  by  the  court  for  any  of 
the  causes  set  out  in  the  statute.  It  is  said  by  one  writer  that 
"Where  the  probate  court  has  once  regularly  conferred  the  ap- 
pointment, it  cannot  remove  the  incumbent  except  for  causes 
recognized  by  the  law  as  sufficient,  and  in  the  manner  authorized 
by  statute.  But  it  is  an  inherent  power  in  every  judicial  tribunal 
to  correct  an  error  which  it  may  have  committed,  when  no  posi- 
tive rule  of  law  forbids  it,"  and  that,  therefore,  it  is  the  duty  of 
the  court,  upon  the  appHcation  of  any  party  in  interest,  or  even 
upon  the  court's  own  motion,  to  annul  or  revoke  letters  which 
have  been  erroneously  granted.^ 

Where  letters  of  administration  are  issued  in  a  county  where 
they  are  not  authorized  by  statute,  the  court  in  which  they  are 
issued  may,  upon  its  own  motion,  institute  proceedings  to  set 
them  aside.  ^ 

§  123.  Right  of  resignation.— At  common  law  neither  an 
executor  nor  an  administrator  who  had  accepted  the  office  and 

R.  Co.  V.  Lewis,  24  Neb.  848,  40  N.  Ind.  223,   2   N.   E.   601;   Williams   v. 

W.  401,  2  L.  R.  A.  67n.  Dougherty,   Z7  Ind.  App.   449,  77  N. 

*  Woerner  Am.  Law.  Admin.,  §  268 ;  E.  305. 

Jeffersonville  &c.   R.   Co.  v.   Swayne,  '  Jeffersonville      &c.      R.      Co.      v. 

26  Ind.  477;  Croxton  v.  Renner,   103  Swayne,  26  Ind.  477. 


§    124  REVOCATION    OF    LETTERS   AXD   REMOVAL.  1 75 

qualified  was  permitted  to  resign  his  trust.®  It  has  been  held, 
however,  that  even  where  there  is  no  law  allowing  an  adminis- 
trator to  resign,  yet  if  he  does  so,  and  his  resignation  is  accepted 
by  the  proper  probate  court,  such  acceptance  amounts  to  a  revoca- 
tion of  his  authority.® 

The  right  of  an  administrator  or  executor  to  resign  is  recog- 
nized by  statute  in  this  state,^''  but  even  in  the  absence  of  any 
statute  directly  authorizing  it  such  right  has  been  unquestioned. 

However,  by  resignation  an  executor  or  administrator  does  not 
escape  responsibility,  and  the  court  should  not  accept  such  resig- 
nation until  the  person  tendering  it  has  made  a  full  and  complete 
account  and  settlement  of  the  trust  to  the  court's  satisfaction.^^ 

It  would  hardly  be  held  under  such  statute  as  ours  that  there 
is  any  absolute  or  arbitrary  right  to  resign.  Before  a  resignation 
would  be  accepted,  the  court  would  want  to  be  fully  informed  so 
as  to  determine  if  such  resignation  would  be  consistent  with  the 
interests  of  the  estate.  In  some  of  the  states  notice  of  the  in- 
tended resignation  is  required  to  be  given  to  parties  interested  in 
the  settlement  of  the  estate.^" 

§  124.  Who  may  apply,  and  for  what  causes. — On  a  writ- 
ten application,  verified  by  oath,  of  any  person  interested  in  tlie 
estate,  or  of  any  co-executor,  co-administrator  or  co-surety  of 
such  executor  or  administrator,  specifying  the  grounds  of  com- 
plaint, any  executor,  administrator  with  the  will  annexed,  or  ad- 
ministrator, may  be  removed,  and  his  letters  superseded  by  the 

•Comstock    V.    Crawford,    3    Wall.  'Marsh     v.     People,     15     111.    284; 

(U.   S.)   396,  18  L.  ed.  34;   Sears  v.  Trimble  v.  Williams,  18  Neb.  184,  24 

Dillingham,  12  Mass.  368.  N.   W.   716;   Tulburt   v.    Hollar,    102 

In  the  absence  of  express  statutory  N.  Car.  406,  9  S.  E.  430. 

authority,   an  e.xecutor  and  testamen-  "  Burns'  R.  S.  1908,  §  2756. 

tary  trustee  who  has  qualified  cannot  "  Foster  v.  Wise,  46  Ohio   St.  20, 

be   permitted   to   resign    in    order   to  16  X.  E.  687,  15  Am.  St.  542;  Haynes 

place   the   trust   estate    in    possession  v.  Meeks,  10  Cal.  110. 

of  a  member  of  the  testator's  family  ''  Macey  v.  Stark,  116  Mo.  481,  21 

for   greater  economv  in   its   adminis-  S.  W.  1088;  Head  v.  Bridges,  67  Ga. 

tration.    Mclntyre  v.  Proctor,  145  N.  227;  Vail  v.  Male,  Z7  N.  J.  Eq.  521. 
Car.  288.  59  S.  E.  39.' 


176  INDIANA    PROBATE    LAW.  §    1 24 

court  in  which  such   letters  issued,    for  any  of   the   following 
causes : 

First.  Where,  from  sickness,  habitual  drunkenness,  imbecility, 
change  of  residence,  actual  or  intended,  or  other  cause,  he  is  ren- 
dered incapable  of  discharging  his  trust  to  the  interest  of  the 
estate. 

Second.  When  he  shall  fail  to  make  and  return  inventories 
and  sale-bills,  or  to  render  account  of  his  administration  accord- 
ing to  law  or  the  order  of  the  court,  or  shall  waste  or  fail  to  pay 
over,  according  to  law,  the  money  of  such  estate. 

Third.  When  it  shall  be  shown  to  the  court,  by  his  sureties, 
that  such  executor  or  administrator  has  become  or  is  likely  to 
become  insolvent,  in  consequence  of  which  his  sureties  have 
suffered  or  will  suffer  loss. 

Fourth.  Where  any  administratrix  or  executrix,  at  the  time 
letters  issued,  was  unmarried,  and  shall  afterward  marry,  and 
her  husband  shall  fail  to  file  his  consent  in  open  court,  in  writing, 
to  her  continuing  as  such. 

Fifth.  But  whenever  an  executor  or  administrator  shall  be 
about  removing  from  the  county  in  which  he  resided  at  the  time 
he  became  such  executor  or  administrator,  he  shall,  before  leav- 
ing such  county,  make  a  true  and  final  exhibit,  under  oath,  to  the 
circuit  court,  of  the  condition  of  the  estate  of  which  he  is  executor 
or  administrator,  at  which  time  his  letters  of  executorship  or  ad- 
ministration shall  be  revoked :  Provided,  That  if  any  executor  or 
administrator  removes  to  another  county  in  this  state,  his  letters 
shall  be  revoked,  in  the  discretion  of  the  court. 

Sixth.  Where  he  shall  fail  to  give  additional  bond,  and  sure- 
ties, as  required  by  the  court;  or  the  court  may,  without  such 
application  for  any  such  cause,  in  cases  of  an  emergency,  remove 
such  executor  or  administrator  instantly,  without  citation.^^ 

This  section  of  the  statute  is  not  mandatory;  an  exercise  of  the 

"  Burns'  R.  S.  1908,  §  2762.  moval    may    be    made    without    any 

When   a   removal   is   asked  on   ac-  proof.     McFadden    v.    Ross,   93    Ind. 

count  of  a  failure  to  file  an  inventory,  134.     A    failure   to   make    and    return 

and   the   answer   filed   does   not   deny  inventories  and  sale  bills  is  cause  for 

the  allegations  of  the  petition,  the  re-  removal.    Pace  v.  Oppenheim,  12  Ind. 


8    125  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 77 

powers  conferred  by  it  is,  in  a  large  measure,  within  the  discre- 
tion of  the  court." 

An  appHcation  for  removal  invokes  the  exercise  of  a  power 
which,  in  the  very  nature  of  things,  in  such  a  variety  of  instances 
must  depend  largely  upon  the  discretion  of  the  judge  for  its 
proper  exercise,  but  such  discretion  is  not  an  arbitrary  one  which 
would  permit  a  probate  judge  to  revoke  an  appointment  at  his 
pleasure,  nor  yet  should  its  exercise  be  so  narrowed  as  to  operate 
against  the  plain  interest  of  the  estate. ^^ 

In  one  case  it  is  said :  "The  statute  gives  a  very  broad  discre- 
tion to  the  judge,  evidently  intended  not  to  define  or  limit  the 
disabilities  which  should  be  the  cause  of  removal,  but  to  leave 
room  for  application  of  the  power  to  all  causes  which  may  occur 
to  render  execution  of  the  will  or  administration  of  an  estate  too 
perplex."'" 

§  125.  Same — Statute  construed. — The  causes  for  which 
an  executor  or  administrator  may  be  removed  from  his  trust,  and 
the  mode  by  which  his  removal  may  be  lawfully  procured,  and 
the  persons  who  may  make  an  application  for  his  removal,  are  all 
accurately  defined  and  pointed  out  in  this  statute;  and  from  an 
examination  of  the  statute  it  will  be  seen  that  the  removal  of  an 
executor  or  administrator  from  his  trust  can  only  be  procured 
upon  the  written  application,  to  the  proper  court,  verified  by  oath, 
of  some  person  interested  in  the  estate,  or  of  his  co-executor  or 
co-administrator,  if  he  has  any,  or  a  surety  on  his  bond,  specify- 
ing the  grounds  of  complaint  for  such  removal;  and  such  written 
application  must  show  that  the  applicant,  if  not  a  co-executor  or 
co-administrator,  or  a  surety,  has  a  real  and  existing  interest  in 
the  decedent's  estate,  and  must  allege  some  one  or  more  of  the 

533.     Failure    to    render    accounts    as        "Williams  v.  Tobias,  Z1  Ind.  345; 

required  by  law  is  cause  for  removal.  Whitehall  v.  State,  19  Ind.  30;  Wallis 

Evans  v.  Buchanan,  15  Ind.  438.   It  is  v.  Cooper,  123  Ind.  40,  23  N.  E.  977 ; 

within  the  discretion  of  the  court  to  Toledo  &c.  R.  Co.  v.  Reeves,  8  Ind. 

remove    an    administrator    for   failing  App.  667,  35  N.  E.  199. 
to  file  an  inventory.    Williams  v.  To-        "  Woerner  Am.  Law  Admin.,  §  269. 
bias,  yi  Ind.  345.  "Winship  v.  Bass,  12  Mass.  199. 


12 — Pro.  L.a.w. 


178  INDIANA    PROBATE    LAW.  §    1 26 

Statutory  causes  for  removal,  and  ask  for  such  removal/'  Such 
application  may  be  verified  by  the  oath  of  the  applicant,  or  by  the 
oath  of  any  other  competent  person,  whether  such  person  has  any 
interest  in  the  estate  or  not.^^  A  complaint  to  remove  an  adminis- 
trator and  annul  his  letters,  on  the  ground  of  there  being  no  assets 
of  the  estate  within  the  jurisdiction  of  the  court,  is  bad  if  it  does 
not  allege  in  positive  terms  that  there  were  no  assets  belonging  to 
the  estate  within  the  jurisdiction  of  the  court  at  the  time  the 
administrator  was  appointed.  This  is  an  important  jurisdictional 
fact,  and  the  averments  in  reference  thereto  should  not  be  equiv- 
ocal. ^'^  The  decedent's  widow  has  such  an  interest  in  his  estate 
as  will  authorize  her  to  make  application  for  the  removal  of  the 
administrator  of  his  estate. ^*^ 

Hostile  feeling  existing  between  the  executor  or  administrator 
and  the  widow  of  the  decedent,  the  legatees,  or  those  interested 
in  the  estate,  which  interferes  with  the  efficient  and  prudent  man- 
agement of  the  same,  has  been  held  sufficient  cause  for  removal."^ 

§  126.  Where  letters  have  been  issued  out  of  statutory  or- 
der.— The  statute  which  gives  to  sons  a  priority  of  right  over 
daughters  to  administer  on  the  estate  of  a  deceased  parent  in  the 

"Vail  V.  Givan,  55  Ind.  59.  Habit-  of  administration  on  the  ground  of 
iial  drunkenness  is  cause  for  the  re-  there  being  no  assets  of  the  estate 
moval  of  an  administrator  without  an  within  the  jurisdiction  of  the  court 
affirmative  showing  that  he  has  there-  when  the  administrator  was  appoint- 
by  become  incapable  of  discharging  ed,  alleging  that  no  assets  or  prop- 
his  duties.  Gurley  v.  Butler,  83  Ind.  erty  of  the  decedent  had  come  into 
501.  the   county,  and  if  so  the   same   had 

"  McFadden  v.  Ross,  93  Ind.  134.  been  administered  before  the  appoint- 
An  application  for  the  removal  of  an  ment  of  the  administrator,  is  bad 
administrator  may  be  verified  by  the  for  uncertainty;  also,  a  paragraph  is 
oath  of  the  applicant  or  any  compe-  bad  showing  indebtedness  under  judg- 
tent  person,  and  an  answer  and  other  ment  upon  suit  brought  by  the  ad- 
pleading  necessary  to  form  an  issue  ministrator,  whose  letters  of  admin- 
are  required,  and  a  trial  by  the  court  istration  it  is  sought  to  annul  for 
without  a  jury.  Williams  v.  Tobias,  the  reason  that  there  are  no  assets. 
y?  Ind.  345,  overruled.  Langsdale  v.  Woollen,  120  Ind.  78. 

"  Langsdale    v.    Woollen,    99    Ind.  ^  Pace  v.  Oppenheim,  12  Ind.  533 ; 

575;    Kelly  v.   Kelly,   9   Ala.  908,   44  Evans  v.  Buchanan,  15  Ind.  438. 

Am.  Dec.  469.     A  paragraph  of  com-  "^  Estate  of  Pike.  45  Wis.  391. 
plaint    in    an    action   to    annul    letters 


§    12/  REVOCATION    OF    LETTERS    AND    REMOVAL.  1/9 

absence  of  a  widow  or  widower  is  mandatory;  and  if  application 
is  made  in  time  the  court  has  no  discretion,  but  must  grant  letters 
to  the  applicant.  But  where  letters  have  been  issued  to  a  daugh- 
ter, and  a  son  afterwards  makes  application  for  letters,  and  asks 
that  the  letters  of  administration  issued  to  the  daughter  be  re- 
voked and  that  she  be  removed  from  the  trust,  such  petition  must 
clearly  show  that  he  possesses  all  the  necessary  qualifications  to 
entitle  him  to  act  as  administrator,  or  such  daughter  will  not  be 
removed  and  the  administration  given  to  him.^" 

The  grant  of  letters  to  the  wrong  person,  or  to  one  who  is  not 
preferred  before  the  expiration  of  the  time  for  such  preference, 
should  be  set  aside  on  application." 

An  application,  made  in  proper  time,  for  the  removal  of  an 
administrator  appointed  upon  the  widow's  relinquishment  of  her 
right  within  the  time  allowed  her  to  qualify,  is  not  waived  by  a 
subsequent  application  for  the  removal  of  the  widow  who  was 
appointed  upon  the  resignation  of  the  first  administrator,^* 

§  127.  Causes  for  removal — Neglect  to  file  inventory. — A 
neglect  to  file  accounts  or  inventories  within  the  time  required  by 
law  is  a  good  cause  for  the  removal  of  an  executor  or  adminis- 
trator." 

Where  the  answer  in  such  case  admits  a  failure,  as  charged,  to 
file  an  inventory  and  reports,  and  sets  up  matters  in  excuse,  no 

""Andis  V.  Lowe,  8   Ind.  App.  687,  are    not    authorized    by    the    express 

34  N.  E.  850.  Letters  of  administration  provisions  of  the  statute,   such  court 

granted   out  of  the   order   prescribed  may,  of  its  own  motion,  upon  the  ap- 

by  statute  are  not  void,  but  at  most  plication  of  any  person  interested,  or 

are  only  voidable,  and  until  revoked  or  upon    the    suggestion    of    an    amicus 

set  aside  in  a  proper  proceeding  for  curiae,  revoke  or  set  aside  the  letters 

that  purpose  the  refusal  of  the  court  so  issued,  such  issue  being  coram  non 

to  grant  other  letters  to  another  per-  judice  and  void.     Croxton  v.  Renner, 

son,  although  the  latter  may  have  a  103  Ind.  223,  2  N.  K  60L 

right  under  the  statute  prior  to  that  "' Todhunter    v.    Stewart,    39    Ohio 

of   the    person   to    whom    the    letters  St.  181 ;  ]\Iorgan  v.  Dodge,  44  N.  H. 

were    first    issued,    is    not    erroneous.  255,  82  Am.  Dec.  213. 

Jones  v.   Bittinger,    110   Ind.   476,    11  =' Curtis  v.  Burt,  34  Ala.  729. 

N.  E.  456.    Whenever  a  court  has  is-  "Pace  v.  Oppenheim,  12  Ind.  533; 

sued  letters  of  administration  which  Evans  v.  Buchanan,   15  Ind.  438. 


l8o  INDIANA    PROBATE   LAW.  §    1 28 

evidence  is  necessary  on  l^ehalf  of  the  applicant,  and  the  court 
may  consider  the  sufficiency  of  the  excuse  and  adjudge  the  case 
thereon,  and  the  Supreme  Court  will  not  review  the  exercise  of 
discretion  therein  unless  abuse  appears.^® 

The  inventory  and  appraisement  previously  made  for  the  pur- 
pose of  determining  whether  administration  shall  be  granted  on 
the  estate,  or  whether  the  same  shall  be  set  off  to  the  widow 
under  the  statute,  is  not  a  sufficient  inventory  and  appraisement, 
if  the  estate  is  found  to  be  of  sufficient  value  to  require  an  admin- 
istration, to  relieve  an  administrator  from  the  necessity  of  filing 
another,  and  his  failure  to  do  so  is  good  cause  for  his  removal. 
The  preliminary  inventory  and  appraisement  may  or  may  not 
embrace  all  the  property,  and  it  is  not  conclusive  on  the  question 
of  the  value  of  the  property  appraised;  for  if  the  administrator 
at  any  time  after  his  appointment  should  discover  that  the  estate 
is  not  worth  over  the  statutory  amount  allowed  to  the  widow,  he 
is  required  to  report  the  fact  to  the  court,  and  after  deducting  the 
expenses  of  administration  from  the  property  in  his  hands  he 
shall  deliver  the  remainder  to  the  widow.  He  cannot  make  such 
discovery  except  by  making  an  inventory  of  the  estate  and  caus- 
ing it  to  be  duly  appraised." 

§  128.  Same — Drunkenness,  imbecility. — Habitual  drunk- 
enness is  made  a  cause  for  the  removal  of  an  executor  or  admin- 
istrator, and  it  is  not  necessary  to  show  affirmatively  that  by  rea- 
son of  such  drunkenness  the  person  whose  removal  is  asked  has 
been  rendered  incapable  of  discharging  his  trust  to  the  interest  of 
the  estate.  The  court  will  take  judicial  cognizance  of  the  fact 
that  habitual  drunkenness  incapacitates  a  man  for  the  discharge 
of  such  trust,  and  it  is  not  necessary  for  the  court  to  inquire  be- 
yond the  fact  of  such  habitual  drunkenness.^* 

The  imbecility  required  by  the  statute  should,  however,  be  such 
as  would  disqualify  one  from  discharging  the  duties  of  the  trust, 
and  the  fact  of  such  imbecility  should  be  determined  as  in  case  of 
unsoundness  of  mind  requiring  the  appointment  of  a  guardian. 

^  McFadden  v.   Ross,  93   Ind.    134.        ^  Gurley  v.  Butler,  83  Ind.  501. 
"  Pace  V.   Oppenheim,    12  Ind.   533. 


129 


REVOCATION    OF    LETTERS    AND    REMOVAL.  l8l 


The  statute  does  not  define  the  degree  of  imbecility  necessary  to 
disqualify  a  person. 

The  drunkenness  contemplated  by  this  statute  is  such  habitual 
indulgence  on  the  part  of  the  executor  or  administrator  as  would 
render  him  incapable  of  giving  the  proper  degree  of  attention  to 
the  management  and  business  of  the  estate.  Proof  that  he  has 
occasionally  been  seen  intoxicated  is  not  sufficient.  As  is  said  in 
one  case,  it  must  be  "habitual,  continued,  inveterate  and  irreme- 
diable habits  of  drunkenness,  incapacitating  him  from  the  trans- 
action of  business."-** 

§  129.  Same — For  failure  to  give  bond,  or  to  account. — 
As  the  statute  also  requires  the  filing  of  a  bond  on  the  appoint- 
ment of  an  administrator,  even  where  there  is  little  or  no  estate, 
some  bond  must  be  filed  so  as  to  hold  the  administrator  to  a  re- 
sponsibility in  the  performance  of  his  duties,  and  a  failure  to  file 
such  bond  is  good  ground  for  his  removal.'" 

An  administrator  or  executor  who  is  required,  by  an  order  of 
court,  to  give  a  new  or  additional  bond,  and  fails  to  comply  with 
such  order,  may  be  removed  and  his  letters  revoked.'^ 

The  neglect  of  an  administrator,  for  nearly  a  year,  to  file  his 
further  account,  after  the  court  had  ordered  him  so  to  do,  such 
administrator  having  in  his  hands  at  the  time  moneys  of  the 
estate  not  paid  over,  is  sufficient  cause  for  his  removal.^^     The 

^  In  re  Cady,  103  N.  Y.  678,  9  X.  E.  habitual  drunkard.     Nor  is  it  neces- 

442;   Elmer  v.  Kechele,  1  Redf.    (N.  sary   he  should  be  continually  in  an 

Y.)'472;  Ludwick  v.  Commonwealth,  intoxicated  state.     A  man  may  be  an 

18    Pa.    St.    172.      Said   the   court    in  habitual   drunkard,  and  yet  be  sober 

this  case:  "To  constitute  an  habitual  for   days    and   weeks   together.     The 

drunkard,   it  is  not  necessary  that  a  only  rule  is,  has  he  a  fixed  habit  of 

man   should  be  always  drunk.     It  is  drunkenness?     Was  he  habituated  to 

impossible  to  lay  down  any  fixed  rule  intemperance    whenever    the    oppor- 

as  to  when   a  man  shall  be   deemed  tunity  offered?    We  agree  that  a  man 

an   habitual    drunkard.     It  must    de-  who  is  intoxicated  or  drunk  one-half 

pend  upon   the  decision  of  the  jury,  his  time  is  an  habitual  drunkard,  and 

under  the  direction  of  the  court.     It  should  be  pronounced  such." 

may,  however,  be  safely  said,  that  to  ~  Toledo  &c.   R.    Co.   v.   Reeves,   8 

bring  a  man  within  the  meaning  of  Ind.  App.  667,  35  N.  E    199 

the  act,  it  is  not  necessary  he  should  '^  Burns  R.  S.  1908,  §  2767. 

be    always    drunk.      Occasional    acts  -  Evans  v.  Buchanan,  15  Ind.  438. 
of  drunkenness  do  not  make  one  an 


l82  INDIANA    PROBATE    LAW. 


130 


fact  that  a  person  appointed  administrator  or  executor  can  neither 
read  nor  write  is,  however,  no  cause  for  his  removal. ^^  An  edu- 
cational qualification,  desirable  though  it  may  be,  is  not  a  statu- 
tory requirement  in  this  state. 

§  130.  Same — Non-residence. — If  the  executor  or  admin- 
istrator resident  in  this  state  ceases,  from  any  cause,  to  be  such, 
it  is  made  the  duty  of  the  clerk  or  court  to  appoint  an  adminis- 
trator with  the  will  annexed,  or  de  bonis  non,  who  is  a  resident 
of  the  county  where  the  estate  is  to  be  administered,  to  act  in  the 
stead  of  the  one  who  has  left  the  state. ^* 

If  an  administrator  or  executor  remove  beyond  the  county  in 
which  his  letters  were  granted,  it  is  a  cause  for  his  removal.  The 
fact  that  he  has  removed  to  another  state  because  the  greater  part 
of  the  assets  of  the  estate  are  in  that  jurisdiction  is  no  defense. 
However,  the  mere  fact  of  his  removal  does  not  vacate  the  office; 
a  judgment  of  the  court  is  necessary  to  establish  such  fact.^° 

As  a  general  rule,  it  may  be  said  that  if  an  executor  or  admin- 
istrator takes  himself  beyond  the  jurisdiction  of  the  court  making 
the  appointment,  and  if  the  estate  is  such  that  it  needs  his  care 
and  attention,  the  court  in  the  exercise  of  its  discretion  should 
remove  him. 

§  131.  Same — Effect  of  marriage. — Whenever  the  ground 
of  complaint  is  that  any  executrix  or  administratrix,  being  an 
unmarried  woman,  has,  since  the  granting  of  letters,  married,  the 
court  shall  not  supersede  such  letters  and  remove  her,  if  her  hus- 
band will  signify  his  assent,  in  writing,  filed  in  open  court,  to  her 
continuing  as  such,  and  if  she  shall  give  further  bond  and  surety 
to  the  satisfaction  of  the  court,  if  such  surety  be  required. ^^ 

Under  this  section  of  the  statute  a  feme  sole  who,  having  been 
appointed  executrix  or  administratrix,  should  marry  during  the 
continuance  of  her  trust,  gives  sufficient  cause  for  her  peremptory 
removal,  unless  her  husband  will  file  in  open  court  his  written 
consent  to  her  continuing  in  such  trust.     This  consent  does  not 

'''  Gregg  V.  Wilson,  24  Ind.  227.  ^  State  v.  Rucker,  59  Mo.  17. 

■"  Ewing  V.  Ewing,  38  Ind.  390.  ^  Burns  R.  S.  1908,  §  2768. 


§    132  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 83 

make  him  a  co-administrator  or  co-executor  with  her;  the  office 
remains  entire  in  the  wife.^' 

Marriage  does  not  eo  instanti  deprive  her  of  her  powers  as 
such  officer,  but  renders  her  incompetent  to  hold  the  office,  unless 
her  husband  should  consent,  so  that  she  may  be  proceeded  against 
for  suspension  and  removal.*^ 

§  132.  Application  for  removal — Notice,  etc. — AX'hile  it  is 
probably  true  that  in  a  proper  case  the  court  could  of  its  own 
motion  remove  an  executor  or  administrator,  yet  the  usual  prac- 
tice is  to  invoke  action  of  the  court  by  filing  an  application  for 
removal  and  giving  to  the  officer  charged  notice  of  such  applica- 
tion. 

Our  statute  provides  that  upon  filing  such  application,  or  upon 
the  order  of  the  court,  the  clerk  shall  issue  a  citation  to  the  person 
complained  against,  requiring  him  to  appear  and  answer;  which 
citation  shall  be  served  on  him  ten  days  before  the  hearing  of  the 
cause.'® 

Where  the  executor  or  administrator  is  a  non-resident,  a  cita- 
tion to  him  to  appear  and  answer  a  i^etition  for  his  removal  is 
unnecessary,  because  it  would  be  unavailing."'*'  If  such  executor 
be  not  a  resident  of  the  state,  notice  of  the  filing  of  such  applica- 
tion shall  be  given  three  weeks  successively  in  some  newspaper 
published  in  the  county  where  such  application  is  filed,  or,  if  none 
be  printed  therein,  then  in  some  newspaper  in  this  state  nearest 
thereto.*^  Publication  for  three  weeks  consecutively  means  a 
publication  for  twenty-one  days,  and  not  simply  three  insertions 
in  a  weekly  newspaper,  which  would  ordinarily  cover  a  period  of 
but  fifteen  days.^" 

"  Jenkins  v.  Jenkins,  23  Ind.  79.  "  Burns  R.  S.  1908,  §  2764. 

^  Cosgrove  v.  Pitman,  103  Cal.  268,        *^  Loughridge     v.     Huntington,     56 

37  Pac.  232.  Ind.    253;    Meredith    v.    Chancey,    59 

**  Bums  R.  S.  1908,  §  2763.  Ind.  466.   Citation  is  usually  by  news- 

"Crabb  v.  Atwood,  10  Ind.  331.  paper  publication.  It  should  follow 
The  court  say :  "The  mere  fact  that  the  prayer  of  the  petition.  Robinson 
the  state  of  the  case  required  notice  v.  Steele,  5  Ala.  473;  Scott  v.  Ken- 
by  publication,  at  once  shows  that  a  nedj',  12  B.  Mon.  (Ky.)  510;  Neal 
citation  was  not  requisite,  because  it  v.  Wellons,  20  Miss.  649. 
would  have  been  unavailing." 


184  INDIANA    PROBATE    LAW.  §    1 33 

A  petition  for  the  removal  of  an  administrator  was  filed  in 
vacation  and  the  clerk  gave  notice  of  its  pendency  by  publication; 
held,  that  an  order  of  court  authorizing  such  publication  was  un- 
necessary." How  the  fact  of  non-residence  shall  be  brought  to 
the  knowledge  of  the  clerk,  so  as  to  authorize  him  to  make  the 
publication  required  by  this  statute,  is  a  question  nowhere  deter- 
mined in  the  act  relating  to  decedents'  estates.  Formerly  this 
act  contained  a  section**  which  required  the  affidavit  of  some  dis- 
interested person,  as  to  the  fact  of  such  non-residency,  to  be  filed 
with  the  clerk  of  the  court  where  the  petition  for  removal  was 
pending,  and  the  notice  by  publication  given  by  such  clerk  was 
based  upon  this  affidavit ;  while  the  act  under  consideration  is 
now  silent  upon  this  point,  it  will  be  found  to  be  the  safer  prac- 
tice, when  an  application  for  the  removal  of  a  non-resident  execu- 
tor or  administrator  is  filed,  to  accompany  such  application  with 
an  affidavit  showing  the  fact  of  such  non-residence. 

§  133.  Same — Notice  by  publication. — The  statute  pro- 
vides for  notice  of  the  application  either  by  citation  or  publica- 
tion. 

Section  322,  Burns'  R.  S.  1908,  relating  to  the  procedure  in 
civil  cases,  provides  for  publication  against  non-resident  defend- 
ants in  civil  actions.  Under  this  section  it  has  been  held  that  the 
affidavit  must  show  that  the  party  proceeded  against  is  a  non-resi- 
dent of  the  state, *^  and  such  affidavit  will  not  be  held  insufficient 
simply  because  the  affiant  has  made  oath  that  "he  is  informed 
and  verily  believes."**'  To  swear  that  he  believes  a  thing  to  be 
true  is  equivalent  to  swearing  that  it  is  true.*^  Where  the  ad- 
ministrator is  a  non-resident,  and  where  the  record  is  silent  upon 
that  point,  it  will  be  presumed  that  a  proper  affidavit  to  authorize 
the  publication  was  filed. *^ 

Any  action  of  the  court  removing  an  executor  or  administrator 
without  a  compliance  with  these  sections  of  the  statute  relating  to 

"Crabb  v.  Atwood,  10  Ind.  331.  ^  Bonsell   v.   Bonsell,   41   Ind.   476; 

"  R.  S.  1876,  §  172.  Trew  v.  Gaskill,  10  Ind.  265. 

"  Johnson  v.  Patterson,  12  Ind.  471 ;  "  Simpkins  v.  Malatt,  9  Ind.  543. 
Unknown  Heirs  v.  Kimball,  4  Ind.  ^  Crabb  v.  Atwood,  10  Ind.  331. 
546,  58  Am.  Dec.  638. 


§    134  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 85 

notice,  unless  such  executor  or  administrator  voluntarily  appears 
to  such  action,  would  be  a  nullity."*® 

The  petition  for  the  removal  of  an  executor  or  administrator 
must  not  only  contain  some  definite  and  specific  charge  of  mal- 
administration against  such  officer,  but  he  must  have  such  notice 
of  the  proceeding  as  the  statute  requires;  and  unless  he  has  been 
so  notified  or  has  personally  appeared,  a  judgment  of  removal 
against  him  cannot  be  entered.^" 

But  if  one  who  has  been  appointed  administrator  has  been 
judicially  declared  to  be  insane,  notice  to  him  is  unnecessary,  and 
he  may  at  once  be  removed  by  the  court. °^ 

§  134.  Who  may  move  for  revocation  or  removal. — One 
who  has  no  direct  interest  in  the  estate  or  who  cannot  be  benefited 
by  the  removal  of  the  executor  or  administrator,  or  the  revoca- 
tion of  his  letters,  cannot  apply  for  his  removal.  For  this  reason 
the  application  must  show  the  interest  of  the  party  invoking  it 
and  in  what  way  he  will  be  benefited  or  affected  by  the  order  he 
asks  the  court  to  make.  It  is  not  sufficient  in  such  application  to 
charge  mismanagement,  misapplication  of  funds,  or  maladminis- 
tration in  general  terms,  but  the  facts  must  be  stated." 

A  creditor  who  is  entitled  to  letters  may  apply  for  the  removal 
of  an  administrator,  if,  within  the  time  such  creditor  had  priority 
in  the  right  of  appointment,  the  court  appoints  a  stranger  to  the 

"  Dibble     v.     Dibble,    8    Ind.    307.  guardian,  and  without  appearance  by 

Where  an  administrator  is  discharged  or   for   him.     The   order   was   there- 

or    removed    interested    parties    have  fore    void,    as    he    could    not    be    re- 

the  right  to  object  to  his  account  as  moved  without  notice.     An  order  by 

stated  in  his  reports.    Poulson  v.  Na-  the  circuit  court  removing  a  guardian, 

tional  Bank.  33  N.  J.  Eq.  618.  which  appears  upon  its  face  to  be  ex 

'o  Vail  V.  Givan,  55  Ind.  59 ;  Dibble  parte  and  to  have  been  made  without 

V.  Dibble,  8  Ind.  307 ;  Martin  v.  Beas-  any  notice  of  any  character,  and  with 

ley.  49  Ind.  280;  Colvin  v.  State,  127  no  finding  by  the  court  that  there  was 

Ind.   403,  26   N.   E.   888.     In   Colvin  any  notice,  being  absolutely  void  may 

V.  State,' 127  Ind.  403,  26  N.  E.  888.  be  attacked  collaterally." 

it  is  said:  "The  order  removing  the  "In  re  Blinn,  99  Cal.  216,  33  Pac. 

guardian,    or    purporting    to    remove  841. 

him,    was    ex    parte,    and   was   made  « Woemer  Am.  Law  Admm.,  ^  2/2; 

without   anv   notice   whatever   to   the  Vail  v.  Givan,  55  Ind.  59. 


1 86  INDIANA    PROBATE   LAW.  §    134 

office."  But  if  one  who  is  next  of  kin  and  entitled  to  administer 
yield  his  right  to  a  stranger,  he  may  not  thereafter  revoke  his 
consent  and  ask  for  the  removal  of  the  one  appointed."*  And 
where  the  appointment  of  one  was  void  because  of  a  prior  ap- 
pointment, such  a  one  cannot  ask  for  the  removal  of  such  prior 
appointee  on  the  ground  that  such  appointee's  letters  were  void- 
able." 

Nor  can  an  illegitimate  son  ask  for  the  removal  of  his  mother 
as  administrator  of  the  estate  of  his  putative  father  on  the 
ground  that  she  was  never  married  to  the  intestate,  for  such  son 
has  no  interest  in  the  estate  to  give  him  a  right  to  make  the  appli- 
cation.^'' 

Our  statute  provides  that  an  application  for  removal  may  be 
made  by  any  person  interested  in  the  estate,  or  by  any  co-execu- 
tor, co-administrator,  or  co-surety,  and  such  application  must  be 
made  under  oath  and  specify  the  grounds  for  removal."  And 
any  person  interested  in  the  estate  may  file  and  prosecute  such 
application  independently  of  other  parties  having  a  like  interest, 
and  unless  required  to  do  so  by  the  court,  such  other  persons 
need  not  be  made  parties  to  the  application. °^ 

When  the  supervisory  power  of  probate  courts  over  executors 
and  administrators  is  considered,  and  the  duty  resting  upon  such 
courts  to  vigilantly  exercise  this  power,  taken  in  connection  with 
the  amount  of  personal  knowledge  in  the  premises,  which  the 
court  will,  generally,  as  a  matter  of  course,  possess,  the  exercise 
of  such  power  in  the  removal  of  an  executor  or  administrator 
from  his  trust  will  not,  in  a  doubtful  case,  be  interfered  with  by 
the  Supreme  Court.  "^ 

Where  a  court  revokes  letters  of  administration,  it  will  be 
presumed,  until  the  contrary  is  made  to  appear,  that  the  same 
court  granted  them.^*^ 

"^  Ferris  v.  Ferris,  89  111.  452.  "  Bums'  R.  S.  1908,  §  2762. 

"  Cole  V.  Dial,  12  Tex.  100.  ^  Estate   of   Pike,   45   Wis.   391. 

"Coltart  V.  Allen,  40  Ala.   155,  88        'MVhitehall  v.  State,   19  Ind.  30. 
Am.   Dec.  757.  ""State  v.  Johnson,  7  Blackf.  (Ind.) 

^  Alyatt  V.  Myatt,  44  111.  473.  529. 


§135  REVOCATION    OF    LETTERS    AND    REMOVAL.  187 

§  135.  Defenses  to  application. — x\n  administrator  or  ex- 
ecutor cannot  be  removed,  as  we  have  shown,  except  upon  a 
proper  apphcation  of  one  of  the  classes  of  persons  named  in  the 
statute,  or  upon  some  legal  cause  as  specified  in  the  statute,  and 
after  due  notice  to  him.®^ 

The  statute  contemplates  the  filing  of  an  answer  where  an  ap- 
plication to  remove  an  executor  or  administrator  is  made,  the 
formation  of  issues,  and  a  trial  by  the  court,  upon  evidence,  in 
the  exercise  of  its  probate  jurisdiction,  in  a  manner  more  sum- 
mar}',  but  still  somewhat  analogous  to  ordinary  civil  actions. 
The  case  of  Williams  v.  Tobias,  37  Ind.  345,  holding  a  different 
view  of  the  law,  is  on  this  one  point  overruled. *'- 

In  an  action  to  revoke  letters  of  administration  and  set  aside 
a  sale  of  real  estate  made  by  the  administrator,  on  the  ground 
that  his  appointment  was  null  and  void,  the  purchaser  of  such 
real  estate  is  not  a  proper  party  defendant. *^^ 

It  has  been  held  that,  where  a  cause  which  would  disqualify 
one  from  holding  letters  of  administration  was  well  known  at 
the  time  of  his  appointment  as  administrator,  such  cause  could 
not  afterwards  be  taken  advantage  of  for  the  purpose  of  remov- 
ing such  administrator.** 

Mere  errors  of  judgment  are  not  sufficient  to  authorize  the 
removal  of  an  administrator.  Such  errors  must  amount  to  mal- 
feasance, or  there  must  be  wilful  misconduct,  waste  or  misappro- 
priation of  assets.*^ 

The  widow  and  heirs  of  a  decedent  cannot  maintain  proceed- 
ings to  have  letters  of  administration  revoked,  and  a  sale  of  the 
decedent's  land  by  the  administrator  set  aside  on  account  of  al- 
leged fraud  and  collusion  in  the  recovery  of  a  judgment  to  which 

"Vail  V.  Givan.  55  Ind.  59.  396.    Upon  the  hearing  of  an  applica- 

'"McFadden  v.   Ross,  93   Ind.   134;  tion  to  remove  an  administrator  it  is 

Phelps  V.  Martin,  74  Ind.  339;  Ewing  not  competent  to  show  that  the  dece- 

V.   Ewing,  38  Ind.  390.  dent    expressed    a    wish    that    there 

"  McManus   v.   Bush,   48   Ind.   303.  should   be   no    administration,   nor   a 

"Drake  v.  Green,  10  Allen  (Mass.)  custom  of  the  court  as  to  the  appoint- 

124;  Lehr  v.  Tarball,  2  How.  (Miss.)  ment    of    administrators.     Bowen    v. 

905.  Stewart,  128  Ind.  507,  26  N.  E.   168, 

"  Witherspoon  v.  Watts,  18  S.  Car.  28  N.  E.  73. 


l88  INDIANA    PROBATE    LAW.  §    1 36 

they  were  not  parties,  and  for  the  payment  of  which  the  land  was 
sold  by  such  administrator.***^ 

If  an  administrator  be  sued  for  a  debt  of  his  intestate,  and 
after  such  suit  has  been  commenced  the  administrator  should 
be  removed  and  his  letters  revoked,  he  may  plead  such  revoca- 
tion in  bar  of  the  further  progress  of  the  action.®^  It  is  a  good 
defense  to  an  action  on  a  note  payable  to  an  executor  or  admin- 
istrator of  an  estate,  as  such,  and  sued  on  by  him  in  that  capacity, 
to  show  that  the  note  belongs  to  the  estate  and  that  the  letters 
issued  to  such  executor  or  administrator  have  been  revoked.®* 

While  the  safety  of  the  estate  and  its  efficient  administration 
is  the  paramount  object  of  probate  courts,  yet  they  will  not  per- 
mit this  consideration  to  control  personal  rights,  or  to  lead  to  the 
impeachment  of  the  competency  or  integrity  of  the  court's  ap- 
pointee because  some  other  person  may  be  better  qualified  for  the 
trust.''* 

§  136.  Hearing  on  application — No  jury. — The  statute 
provides,  at  the  term  of  court  next  after  notice  has  been  given, 
the  court  shall  proceed  to  hear  the  proofs  and  allegations  of  the 
parties,  and,  upon  such  hearing,  may  examine  such  executor  or 
administrator  on  oath.'^"  Under  this  section  of  the  statute  the 
administrator  or  executor,  in  addition  to  answering  the  applica- 
tion as  an  action  against  him,  may  be  examined  on  oath,  orally, 
at  the  hearing  of  the  cause. '^^  If  the  hearing  authorized  by  this 
statute  be  not  had  at  the  next  term  of  court  after  notice  has  been 
given,  it  may  be  had  at  the  next  succeeding  term,  if  the  cause  is 
properly  continued  thereto." 

The  constitution  of  Indiana  provides  that  "in  all  civil  cases  the 
right  of  trial  by  jury  shall  remain  inviolate."     As  this  provision 

*=  Cassel  V.  Case,  14  Ind.  393.  Bowen  v.  Stewart,  128  Ind.  507,  26  N. 

"Morrison     v.     Cones,     7     Blackf.  K   168,  28  N.   E.  1Z\   McClelland  v. 

(Ind.)  593.  Bristow,  9   Ind.   App.  543,  35   N.   E. 

"'Leach    v.    Lewis,    38    Ind.     160.  197. 
Where  an  application  is  made  to  re-        **  Woerner  Am.  Law  Admin.,  269. 
move    an     administrator,     the    party        ™  Burns'  R.  S.  1908,  §  2765. 
making  the  application  is  not  entitled        "  McFadden  v.  Ross,  93  Ind.  134, 
to  a  change  of  venue  from  the  judge.        "Crabb  v.  Atwood,  10  Ind.  331. 


§    137  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 89 

applies,  in  terms,  but  to  civil  cases,  the  question  of  what  is  a  civil 
case  within  its  meaning  becomes  important.  At  the  time  of  the 
adoption  of  the  constitution  the  term  "civil  case"  had  a  fixed  and 
definite  meaning  which  had  been  long  established  at  common 
law,  and  the  term  was  used  in  its  common-law  sense.  When  the 
code  of  civil  procedure  was  adopted  in  this  state  the  distinction 
theretofore  existing  between  actions  at  law  and  in  chancery  was 
abolished,  and  one  form  of  action  adopted,  in  all  cases,  to  be 
known  as  a  "civil  action."  The  rule,  however,  seems  to  be  well 
settled  that  this  constitutional  provision  embraces  only  such  cases 
as  were  treated  as  civil  cases  in  this  state  at  the  time  of  the  adop- 
tion of  the  constitution.'^  This  construction  of  the  above  clause 
of  the  constitution  had  the  effect,  on  this  one  point  of  practice,  to 
maintain  a  distinction  between  the  law  and  equity  cases. 

§  137.  Same. — This  seeming  contradiction  between  the 
rulings  of  the  Supreme  Court  and  the  provision  of  the  code  of 
practice  was  remedied  in  1881  by  the  enactment  of  what  is  now 
§  418.  Bums  R.  S.  1908,  which,  for  all  practical  purposes  in  the 
trial  of  causes,  re-establishes  the  old  distinctions  existing  between 
the  methods  of  trial  in  actions  at  law  and  actions  in  chancer}^  The 
legislature  may  prescribe  the  right  of  trial  by  jury  in  cases  where 
the  constitution  does  not  give  it  as  a  right,  but  they  cannot  with- 
hold such  right  in  cases  where  it  is  so  given.'*  And  it  may  be 
safely  assumed  that  matters  within  the  act  relating  to  the  settle- 
ment of  decedents'  estates  are  not  "civil  cases"  within  the  above- 
established  meaning  of  the  term,  and  that  in  trials  arising  under 
the  provisions  of  that  act  a  jury  will  not  be  allowed  as  a  matter 
of  right.  Such  right  was  formerly  prescribed  by  statute.  Prior 
to  the  adoption  of  the  revised  statutes  of  1881  any  issue  of  fact 
concerning  the  settlement  of  the  estate  of  any  decedent  was 
triable  by  a  jury  at  the  request  of  either  party  ;^^  but  this  statute 
is  omitted  from  the  revision  of  1 881.     A  jury  may  be  allowed 

"Lake  Erie  &c.  R.  Co.  v.  Heath,  9     han   v.   Works,   72   Ind.   19;    Clouser 
Ind.  558;  Shaw  v.  Kent,  11  Ind.  80;     v.  Ruckman,  89  Ind.  65. 
Clem  V.  Durham,   14  Ind.  263 ;  Ham-         ''  Lake   Erie   &c.   R.    Co.   v.    Heath, 
Ivn    V.    Nesbit.   37   Ind.   284 ;    McMa-    9  Ind.  558. 

'=  R.  S.  1876,  p.  556.  §  188. 


190  INDIANA  PROBATE  LAW.  §  I38 

on  the  trial  of  a  claim  against  the  estate  of  a  decedent,  because 
such  trial  is  ''conducted  as  in  ordinary  civil  cases."  But  the  trial 
of  an  application  to  remove  an  executor  or  administrator  must 
be  tried  by  the  court  in  a  summary  manner.""  The  conclusion, 
then,  seems  to  be  that,  in  the  absence  of  any  statute  authorizing 
a  jury  trial  in  such  case,  no  matter  arising  strictly  under  the  act 
for  the  settlement  of  decedents'  estates  can  be  tried  by  a  jury. 

§  138.    The  hearing  a  summary  proceeding — No  change  of 
venue. — A  proceeding  to  remove  an  administrator,  being  sum- 
mary in  its  character,  is  one  to  which  the  statute  providing  for 
changes  of  venue  and  change  of  judge  does  not  apply.   The  rea- 
sons are  given  by  the  court  in  the  case  of  Bowen  v.  Stewart,  128 
Ind.  507,  26  N.  E.  168,  28  N.  E.  y-^,  where  it  says :  "The  appoint- 
ment and  removal  of  an  administrator,  and  the  dealings  which  he 
has  with  his  trust,  are  so  exclusively  under  the  supervision  of  the 
judge  of  the  court  wherein  the  estate  is  pending  for  settlement  that 
it  is  evident  it  was  never  the  legislative  intention  that  this  supervi- 
sion might  be  destroyed  by  the  filing  of  an  affidavit  for  a  change 
of  venue,  or  for  a  change  of  judge.  If  an  adminisrator  may  apply 
for  a  change  from  the  county  or  judge,  in  an  application  for  his 
removal,  we  know  of  no  reason  why  he  may  not  do  so  when  he 
presents  a  partial,  or  his  final  settlement  report.     No  one  can  so 
intelligently  exercise  the  discretion  which  belongs  to  the  court 
as  the  regular  judge  thereof,  who  is  fully  acquainted  with  the 
condition  of  the  estate,  and  the  manner  in  which  the  adminis- 
trator has  theretofore  performed  his  duties.     *     *     *     If  an 
administrator  is  entitled  to  a  change  from  the  judge  or  county 
in  such  matters  connected  with  the  settlement  of  his  estate  as  rest 
in  the  sound  discretion  of  the  court,  the  result  must  work  great 
injury  to  the  distributees  and  creditors  of  estates  because  of  the 
delay  and  expense  which  will  attend  the  settlement  thereof."" 

§  139.  Judgment,  costs,  appeals,  etc.— If  the  determination 
of  the  court  be  against  the  application  to  remove,  the  costs  of  the 
proceedings  may  be  taxed  against  the  applicant;  but  if  such  de- 

™McFadden  v.   Ross,  93   Ind.    134.        "McClelland    v.    Bristow,    9    Ind. 

App.  543,  35  N.  E.  197. 


§    139  REVOCATION    OF    LETTERS    AND    REMOVAL.  I9I 

termination  be  against  such  executor  or  administrator,  he  shall 
be  removed  and  his  letters  superseded  immediately,  or  a  new  or 
additional  bond  as  surety  be  required,  as  the  case  may  be,  and  the 
costs  of  the  proceedings  be  taxed  against  him  personally.'*  The 
only  judgment  a  court  can  render  in  such  an  action  is  to  remove 
or  refuse  to  remove  the  executor  or  administrator;  but  when  the 
cause  alleged  for  such  removal  is  the  failure  of  the  executor  or 
administrator  to  make  and  return  a  full  and  correct  inventory,  he 
cannot  be  compelled,  in  the  same  proceeding,  to  account  for  the 
articles  not  inventoried. ''* 

If,  after  a  judgment  of  removal,  an  administrator  or  executor 
appeal,  he  may  not  continue  to  act  in  the  trust  pending  such 
appeal.  He  shall  be  removed  and  his  letter  superseded  immedi- 
ately. The  appeal  does  not  suspend  such  revocation. *°  Nor  by 
reason  of  such  appeal  is  an  administrator  entitled  to  interest  on  a 
claim  theretofore  allowed  him  for  services  during  the  time  such 
appeal  was  pending,  nor  to  the  expenses  incurred  by  such  appeal.*^ 

An  administrator  pendente  lite  may  be  appointed  by  the  court 
to  look  after  the  estate  during  the  time  of  the  litigation  over  the 
removal  of  an  administrator." 

A  judgment  of  removal,  like  any  other  judgment,  if  not  abso- 
lutely void,  is  impervious  to  a  collateral  attack." 

The  appeal  suspends,  until  its  termination,  the  powers  of  the 
person  against  whom  it  is  taken,  and  all  his  intermediate  acts  are 
ineffectual.  This  would  be  the  rule  where  the  order  revoked  the 
letters  and  the  administrator  was  removed. 

If  anything  is  necessar)^  to  be  done  for  the  estate  pending  the 
prosecution  of  an  appeal  from  the  order  of  the  court  removing 
an  administrator  or  executor,  it  is  within  the  power  of  the  pro- 

"  Burns'  R.  S.  1908,  §  2766.  ceedings,   is  to  stay  the   enforcement 

"Williams   v.   Tobias,  Zl   Ind.  345.  of  the   judgment  appealed  from." 

*"  Hayes  v.  Hayes,  75  Ind.  395.   It  is  "  McClelland    v.    Bristow,    9    Ind. 

said   in   this   case:    "An   appeal   does  App.  543,  35  N.  E.  197. 

not  annul  a  judgment;  the  utmost  ef-  '"Burns'  R.  S.  1908,  §  2753. 

feet   it  can  have,   even  when   accom-  *^  Simpson  v.   Cook,  24  Minn.   180; 

panied   by   the   proper   auxiliary  pro-  Harrison  v.  Clark,  87  N.  Y.  572. 


192  INDIANA    PROBATE    LAW.  §140 

bate  court  to  appoint  an  administrator  pendente  lite.     The  bond 
of  such  officer  is  not  vacated  by  such  appeal,  but  only  suspended.^* 

§  140.  Effect  of  removal. — Upon  making  an  order  remov- 
ing an  executor  or  administrator,  if  such  order  is  appealed  from, 
the  court  should  forthwith  require  from  such  officer  an  account- 
ing of  the  estate  in  his  hands  and  a  payment  of  any  balance  found 
lawfully  due  from  him  to  his  successor,  if  one  has  been  appointed, 
or  if  none  has  been  appointed,  to  order  it  paid  into  court  for 
whosoever  may  afterwards  be  found  entitled  to  it.  It  is  pro- 
vided that  whenever  any  executor  or  administrator  is  so  removed 
as  aforesaid  all  his  power  shall  cease  and  his  acts  as  such  be  void, 
and  the  court  shall  appoint  his  successor,  to  whom  letters  de  bonis 
non  shall  issue.^"^ 

An  executor  or  administrator  who  has  been  so  removed  should 
pay  the  money  remaining  in  his  hands  belonging  to  the  estate  into 
court  or  to  his  successor  in  the  trust,  without  a  demand  for  such 
payment,^**  and,  on  his  failure  to  make  such  payment,  he  may  be 
compelled  by  such  successor  to  do  so.^^ 

After  he  has  been  removed,  such  executor  or  administrator  has 
no  authority  over  the  estate  except  to  report  his  acts  to  the  date 
of  such  removal  and  turn  over  the  balance  of  the  estate  in  his 
hands  to  his  successor,  and  all  persons  are  bound  to  take  notice 
of  his  removal.** 

The  following  from  a  noted  author  is  pertinent  in  this  connec- 
tion:  "A  revocation  upon  citation,  where  the  grant  of  letters 
was  voidable  only,  leaA-es  all  lawful  acts  done  by  the  first  admin- 
istrator valid  and  binding,  as  though  his  authority  had  not  been 
questioned ;  all  sales  of  real  or  personal  property  made  lawfully 
by  the  executor  or  administrator,  and  with  good  faith  on  the  part 
of  the  purchaser,  are  and  shall  remain  valid  and  effectual,  and  the 
payment  to  him  of  a  debt  to  the  estate  will  be  a  legal  discharge  to 
the  debtor.  This  is  self-evident,  and  it  would  be  a  waste  of  time 
and  space  to  examine  the  very  numerous  cases  so  holding."*^ 

**  Woerner  Am.  Law  Admin,  §  274.  **  Owens     v.     Cowan,     7     B.     Mon. 

'''Burns'  R.  S.  1908,  §  2771.  (Ky.)    152;    Franklin   County  v.   Mc- 

*■  Lane  v.  State,  27  Ind.  108.  Elvain,   5   Ohio  200. 

*'  Kelly  V.  Weddle,   1  Ind.  550.  «"  Woerner  Am.  Law  Admin.,  §  274. 


§    141  REVOCATION    OF    LETTERS    AND    REMOVAL.  1 93 

The  removal  of  an  executor  or  administrator  authorizes  the 
administrator  de  bonis  non  to  immediately  take  possession  of  all 
the  property  and  effects  of  the  decedent  not  already  administered, 
and  he  may  bring  suit  for  that  purpose.'"' 

After  his  removal  an  executor  or  administrator  can  exercise 
no  lawful  control  or  authority  over  the  estate,  and  for  this  reason 
the  sureties  on  his  bond  will  not  be  held  liable  for  any  act  of  his 
affecting  the  estate  after  his  removal,  although  such  officer  would 
be  himself  personally  liable. 

The  removal  of  an  administrator  and  the  appointment  of  his 
successor  is  a  judicial  proceeding  and  is  binding  upon  all  con- 
nected with  it.^^  If  a  suit  be  pending  against  him  in  his  official 
character  at  the  time  of  his  removal,  he  can  plead  such  removal 
and  have  his  successor  substituted  in  his  stead. ^^ 

After  the  revocation  of  letters,  the  removal  or  resignation  of 
an  executor  or  administrator,  such  officer  cannot  complete  a  sale 
he  has  been  negotiating  on  behalf  of  the  estate,  nor  collect  assets 
of  the  estate.""^ 

When  satisfied  that  any  executor  or  administrator  who  has 
been  removed  from  his  trust  yet  retains  assets  of  the  estate  in  his 
hands,  the  proper  court  can  compel  a  payment  or  delivery  thereof 
to  his  successor  in  office,  and  may  enforce  such  payment  by  at- 
tachment ;  but  a  court  is  not  authorized  to  resort  to  such  com- 
pulsory measures  in  favor  of  such  removed  executor  or  adminis- 
trator against  such  successor  for  a  balance  due  from  the  estate  to 
such  removed  executor  or  administrator.®^ 

In  case  of  an  unnecessary  delay  on  the  part  of  such  executor 
or  administrator,  the  court  may,  by  citation  and  attachment, 
compel  him  to  render  his  account.*' 

§  141.  Intermeddling  and  embezzlement  after  removal, — 
\\'henever  any  executor  or  administrator  is  removed,  and  his 
letters  are  superseded,  if  he,  at  any  time  afterward,  unlawfully 

"  Pitcher  v.  Reese,  6  Ohio  418.  "  Woerner  Am.  Law  Admin.,  §  274. 

"  Franklin    County  v.    McElvain,   5  "  Burns'  R.  S.  1908,  §  2772. 

Ohio  200.  "  Burns'  R.  S.  1908,  §  2773 ;  Phelps 

•'National    Bank    v.    Stanton,    116  v.    Martin,    74    Ind.    339;    Ex    Parte 

Mass.  435.  Wright,  65  Ind.  504. 

13— Pro.  L.wv. 


194  INDIANA  PROBATE  LAW.  §  141 

intermeddle  with  such  estate,  he  shall  be  attached  and  imprisoned 
not  less  than  ten  days  nor  more  than  one  month,  by  the  proper 
circuit  court,  upon  complaint  of  any  one  interested.^*' 

In  addition  to  removing  him,  if  any  executor  or  administrator 
shall  embezzle  or  conceal  any  of  the  property  of  the  decedent,  the 
court  shall  attach  his  person  and  property,  and  examine  him  under 
oath  touching  such  property;  and  on  his  refusing  to  answer  in 
such  examination,  or  to  deliver  up  such  property,  or  secure  the 
value  thereof  to  the  persons  interested  in  such  estate,  with  ten 
per  cent,  damages  thereon,  the  court  shall  commit  him  to  jail  until 
the  order  be  complied  with  or  he  be  discharged  according  to  law." 

This  last  section  of  the  statute,  strictly  construed,  does  not 
apply  to  the  case  of  one  who  has  been  removed  from  his  trust, 
and  who  is  no  longer  an  executor  or  administrator.  These  two 
sections  should,  perhaps,  be  construed  together,  and  when  an 
administrator  or  executor  is  both  delinquent  and  recalcitrant,  re- 
fusing to  answer  questions  or  to  surrender  assets  or  moneys  of 
the  trust,  within  his  control,  or  to  give  security  within  his  power 
to  give  for  the  making  good  his  delinquency  the  court  may  well 
exercise  its  indisputable  power  to  enforce  its  orders  by  imprison- 
ment; but  this  power  was  not  designed  to  go  further  and  to  be 
used  as  a  punishment  for  past  offenses.  The  object  of  the  law 
under  consideration  is  to  effect  a  discoveiy  and  restoration,  but 
not  to  punish  for  what  could  not  be  compensated;  to  enforce 
obedience  to  the  orders  of  the  court,  and  not  to  punish  the  ad- 
ministrator.'** 

An  administrator  or  executor,  who  fails  to  comply  with  an 
order  of  court  made  under  the  provisions  of  the  last  section  of 
the  statute  above  set  out,  is  liable  to  imprisonment  as  for  con- 
tempt, but  is  not  subject  to  a  fine ;  and  an  imprisonment  is  only 
authorized  upon  the  refusal  of  such  executor  or  administrator  to 
answer,  upon  examination,  or  to  deliver  up  assets  of  the  estate, 
or  to  secure  the  persons  interested  therein  for  the  value  thereof 
with  ten  per  cent,  damages  thereon.^^ 

*«  Burns'  R.  S.  1908,  §  2770.  Parte  Wright,  65  Ind.  504. 

"  Burns'  R.  S.  1908,  §  2772.  «'  Ex  Parte  Wright,  65  Ind.  504. 

"'Phelps  V.  Martin,  74  Ind.  339;  Ex 


§    142  REV'OCATION    OF    LETTERS    AND    REMOVAL.  I95 

§  142.    Acts  legalized. — All  lawful  acts  done  by  executors 

or  administrators  whose  authority  shall  cease,  or  by  adminis- 
trators before  notice  of  a  will  duly  proved,  shall  be  valid/ 

Even  under  this  statute,  if  the  appointment  of  an  executor  or 
administrator  was  void  from  the  beginning,  neither  such  execu- 
tor or  administrator,  nor  those  who  deal  with  him,  will  be  pro- 
tected. The  judgment  of  court  removing  him  and  revoking  his 
letters  is  simply  a  declaration  of  the  nullity  of  the  acts  done,  and 
serves  the  purpose  of  correcting  the  records  of  the  court  and  pre- 
venting any  further  action  under  such  void  appointment.^ 

But  if  such  appointment  was  merely  voidable,  then  this  statute 
applies  and  cures  any  defect  in  the  exercise  of  his  powers  in  the 
settlement  of  the  estate  entrusted  to  him.^ 

'  Burns'  R.  S.  1908,  §  2774.  '  Shephard  v.  Rhodes,  60  111.  301. 

■  Griffith  V.  Frazier,  8  Cranch  (U. 
S.)  9,  3  L.  ed.  471;  Williams  Extrs. 
586. 


CHAPTER    IX. 


DISPOSITION  OF   PERSONAL   PROPERTY. 


§  143.  What  are  assets. 
144.  What  property  charged. 

145.  Same — As  to  emblements. 

146.  Same— As    to    fi.xtures. 

147.  Same — As    to   rents. 

148.  Same — As     to     interest     and 

profits. 

149.  Same — As  to  choses  in  action, 

money,  stocks,  etc. 

150.  Same — Property        fraudulently 

conveyed. 

151.  Mortgages    as    personal    prop- 

erty. 

152.  Same — Common-law  rule. 

153.  Contracts    in    consideration    of 

marriage. 

154.  Title   to   and   power   over  per- 

sonal   property. 

155.  Same — As  to  promissory  notes, 

debts,  etc. 

156.  Same — Right  to  sue. 

157.  The    inventory    and    appraise- 

ment. 

158.  Inventory,     statutory     require- 

ments. 

159.  What  the  inventory  should  in- 

clude. 

160.  When  and  by  whom  inventory 

must  be  filed. 

161.  Separate  and  additional  inven- 

tories. 

162.  What  shall  be  omitted. 

163.  Appraisers,    their    appointment 

and  duties. 


§  164.  The  widow's  selection. 

165.  Same — Statute   construed. 

166.  Same — Effect  of  a  will. 

167.  Same — Widow     may     maintain 

action  for. 

168.  Return  of  the  inventory. 

169.  Examination  and  approval. 

170.  Sale    of    personal    property  — 

When  made. 

171.  Postponement   of   the   sale. 

172.  When  notice  of  sale  required. 

173.  Terms  of  public  sale. 

174.  Sale  bills  and  sale  clerk. 

175.  Personal    property    at    private 

sale. 

176.  Such    sale    must    comply    with 

the  order. 

177.  Report  of  private  sale. 

178.  When  sale  may  be  vacated. 

179.  Sale  of  corporation  stock. 

180.  Sale  of  written  contracts. 

181.  Sale  of  contracts  for  land. 

182.  Same — Assignment,      sale      o  f 

part,  bond. 

183.  Disposition    of    worthless    sale 

notes. 

184.  Same — Who  may  sue,    etc. 

185.  Disposition  of  desperate  debts. 

186.  Collection    of    debts    and    de- 

mands. 

187.  Persons  concealing  goods. 

188.  Executor  may  administer  oaths. 


§  143.    What  are  assets. — Whatsoever  property  of  a  decedent 
which  will  be  liable  to  sale  for  the  payment  of  the  debts  and  lia- 

196 


§    143  DISPOSITION    OF    PERSONAL    PROPERTY.  I97 

bilities  of  his  estate  becomes  assets  in  the  hands  o£  his  personal 
representative.  "Assets"  is  a  term  which  includes  property  avail- 
able, not  for  enjoyment,  but  in  trust  or  custody  for  the  payment 
of  demands.  Property  held  by  executors  and  administrators  is 
assets  in  their  hands  for  the  benefit  of  the  creditors  of  the  dece- 
dent and  of  the  legatees  and  distributees.  In  this  respect  such 
officers  are  trustees.^ 

Judge  Story  says :  "In  an  accurate  and  legal  sense,  all  the  per- 
sonal property  of  the  deceased,  which  is  of  a  salable  nature,  and 
may  be  converted  into  ready  money,  is  deemed  assets.  But  the 
word  is  not  confined  to  such  property ;  for  all  other  property  of 
the  deceased  which  is  chargeable  with  his  debts  or  legacies,  and  is 
applicable  to  that  purpose,  is  in  a  large  sense  assets.""  The  term 
has  been  extended  to  include  property  or  money  lawfully  received 
by  the  personal  representative  after  the  death  of  the  testator  or 
intestate,  although  belonging  to  another.^ 

If  there  is  property  in  the  hands  of  a  decedent,  at  the  time  of 
his  death  belonging  to  others,  whether  held  by  him  in  trust  or 
otherwise,  which  is  not  distinguishable  from  the  mass  of  his  own 
property,   such  property  will  be   included   in  the  assets  of  his 

'Woerner  Am.  Law  Admin.,  §  305.  p.  917;  Jeflfersonville  &c.  R.  Co.  v. 
What  are  personal  assets  in  the  hands  Swayne,  26  Ind.  477. 
of  an  executor  or  administrator  is  "  Story  Eq.  Jur.,  §  531. 
thus  quaintly  stated  in  an  old  work:  'Thurston  v.  Lowder,  40  Me.  197; 
'•.'\11  those  goods  and  chattels,  ac-  Simpson  v.  Snyder,  54  Iowa  557,  6  N. 
tions  and  commodities,  which  were  W.  730;  IMulford  v.  Mulford,  40  N.  J. 
the  deceased's  in  right  of  action  or  Eq.  163.  In  DeValengin  v.  Duffy,  14 
possession  as  his  own,  and  so  con-  Pet.  (U.  S.)  282,  10  L.  ed.  457,  on  p. 
tinned  to  the  time  of  his  death,  and  290,  the  court  says :  "Upon  a  full  con- 
which  after  his  death  the  e.xecutor  or  sideration  of  the  nature,  and  of  the 
administrator  doth  get  into  his  hands  various  decisions  on  the  subject,  we 
as  duly  belonging  to  him  in  the  right  are  of  opinion  that  whatever  property 
of  his  e.xecutorship  or  administration,  or  money  is  lawfully  recovered  or 
and  all  such  things  as  do  come  to  received  by  the  executor  or  admin- 
the  executor  or  administrator  in  lieu  istrator,  after  the  death  of  his  testa- 
or  by  reason  of  that,  and  nothing  tor  or  intestate  in  virtue  of  his  repre- 
else  shall  be  said  to  be  assets  in  the  sentative  character,  he  holds  as  assets 
hands  of  the  executor  or  administra-  of  the  estate;  and  he  is  liable  there- 
tor,  to  make  him  chargeable  to  a  cred-  for,  in  such  representative  character, 
itor  or  legatee."  1  Shep.  Touchstone,  to  the  party  who  has  a  good  title 
496;  2  Lawson  Rights,  Rem.  &  Prac,  thereto." 


198  INDIANA  PROBATE  LAW.  §  143 

estate,  and  the  owner  has  no  remedy  except  as  a  general  creditor 
of  the  estate.*  But  this  rule  is  pretty  generally  modified  as  to 
trust  funds  or  property  held  in  a  fiduciary  capacity,"  in  one  case 
it  being  said  "the  modern  decisions  have  cut  loose  from  the  rule 
and  declare  that  whene\er  it  is  shown  that  particular  funds  or 
the  existing  assets  of  an  insolvent  estate  have  been  increased  by 
trust  money,  a  court  of  equity  will,  to  the  extent  of  the  money  so 
added,  declare  a  trust  or  priority."" 

The  executor  or  administrator  will  be  charged  not  only  with 
the  chattels  and  property  of  the  decedent  in  his  possession  at 
death,  but  also  with  all  such  property  as  might  by  reasonable 
diligence  be  recovered,  for  property  which  was  never  in  the  de- 
cedent will  become  assets  of  the  estate  for  \vhich  the  executor  or 
administrator  will  be  chargeable  when  received  by  him  ;^  such  as 
damages  for  loss  of  property  taken  from  decedent,**  bounty  due 
and  unpaid,®  dividends  on  corporation  stock  earned  but  not  de- 
clared until  after  the  decedent's  death,^**  salary  voted  after  his 
death, ^^  damages  for  laying  out  a  highway.^^  But  since  as  a 
general  rule  an  executor  or  administrator  takes  no  authority  over 
the  real  estate,  money  received  by  l:im  from  a  railroad  company 
for  a  right  of  way  over  lands  of  the  estate  is  not  assets  in  his 

*  Pryor  v.   Davis,    109  Ala.    117,    19  661;     Woerner     Am.     Law     Admin., 

So.  440;  State  v.  Osborne,  69  Conn.  §  368. 

257,  Zl  Atl.  491 ;  Bobbitt  v.  Jones,  107  '  Woerner  Am.  Law  Admin.,  §  306 ; 

N.  Car.  658,  12  S.  E.  267;  Trecothick  Gray  v.   Swain,  2  Hawks    (N.   Car.) 

V.  Austin,  4  Mason  (U.  S.)  16;  Fow-  15. 

ler  V.  True,  1^  Me.  43 ;  Attorney-Gen-  ^  Grant   v.   Bodwell,  78  Me.  460,   7 

eral  v.  Brigham,  142  Mass.  248,  7  N.  Atl.  12;  Rogers  v.  Hasack,  18  Wend. 

E.  851.  (N.  Y.)   319. 

"  Smith  V.  Combs,  49  N.  J.  Eq.  420,  '  Gardere,    Succession    of,    48    La. 

24  Atl.  9;  First  Nat.  Bank  v.  Hum-  Ann.  289,  19  So.  134. 

mel,    14   Colo.   259,   23    Pac.   986;   20  '"Weller  v.  Cowles.  4  Conn.  182,  10 

Am.  St.  257;  8  L.  R.  A.  788n ;  Kirby  Am.  Dec.  115. 

V.    Wilson,   98   111.   240;    Hubbard   v.  "  Loring   v.    Cunningham,   9    Cush. 

Alamo    Irrigating   &c.    Co..    53    Kan.  (Mass.)  87. 

dn,  36  Pac.  1053,  Zl  Pac.  625.  "  Goodwin  v.  Milton,  25  N.  H.  458 ; 

'  Ulrici  V.  Baeckeloe,  72  Mo.  App.  Neal  v.  Knox  &c.  R.  Co.,  61  Me.  298. 


§    144  DISPOSITION    OF    PERSONAL    PROPERTY.  199 

hands/^    Damages  recovered  by  an  administrator  for  the  wrong- 
ful death  of  his  intestate  are  not  assets  of  the  estate." 

^  144.    What  property  charged.— All  the  property  of  a  de- 
cedent is  liable  to  be  made  assets  for  the  payment  of  the  debts 
and  liabilities  of  his  estate,  yet,  while  this  is  true,  the  personal 
property  is  the  primary  fund  set  apart  by  the  law  for  that  pur- 
pose, and  it  is  the  property  with  which  the  administrator  is  di- 
rectly charged.  i      -d^.i 
Property  is  divided  into  two  classes,  real  and  personal.     Real 
property  is  such  as  has  the  characteristics  of  immobility  or  per- 
manency of  location,  as  lands,  and  rights  issuing  out  of  land. 
Personal  property  is  every  species  of  property  which  does  not 
possess  these  characteristics.-     Chattels  real,  and  certam  estates 
less  than  freehold,  as  leases,  for  a  term  of  years,  are  treated  as 
personal  property  and  go  to  the  executor  or  administrator  of  the 
estate  as  assets,  and  should  be  by  him  inventoried  and  sold  as 
personal  property-  and  a  lease  of  land  for  the  life  of  the  lessor 
is  personal  property  and  goes  to  the  personal  representatives  of 
the  deceased  lessee  and  not  to  his  heirs.' ' 

Where  a  person  has  sold  real  estate,  and  dies  before  the  pur- 

-Hankins  v.  iMmball,  57  Ind.  42.  the  owner   a   right  to   consume   such 

» JeffersonviUe  &c.  R.  Co.  v.  Hen-  articles   as   cannot  be   enjoyed   ^u  h- 

dricks    41   Ind    48;   Hilliker  v.   Citi-  out    consumnig    them,    and    to    wear 

dncks    41    ina.   y  ^^^^  ^^^^^  ^^^.^^^  ^^  ^^^  necessarily  de- 

227.  65  X.  E.  1046,  96  Am.  St.  34  .  ^^^H  .2  \12  N^  E-  336^ 

"Tiedeman  on  Real  Property,  §  1.  Smith    ^     uoaas 
Like  real  propert.^  the  title  to  person-  Taylor^nJ^ord  -d  Ten     t,  ^§  434. 
al  property  may  be  in  one  owner  or  m  C.mnmgham  ^^  ^^^^^^^^^ 
several,    viz.:    as    joint   tenants,   ten  ;°             ..^  ^i^l^  thereto.    Crawford 
ants    in    common,    partners,    corpora-  ^^  P"'^^/;^^; '7^  Ca  299.    But  if  the 
tions     and     ioint     stock     companies^  :,^t:T,osse^^on  of  such  prop- 
Where  personal  property  is  willed  to  custody  ana  P                                          _ 
al  lega.e^  to  be  cHvided^^  II^  Jui^^T ^l^^andin^  owLship  in 
them,    It   will   vest   in    tnem    wuuuu  presumption    of 
partition  or  iudicial  1^='"""  -"'^^t  ^^ ,ership  a Hs-  solel^y  from  posse.- 
,hey  tnay  hold  in  common,  as  long  as  °"'«^=J^^P              j.„y„,,   uj  N.  Y. 
they  soagree^     Baskm  -  Ha,.    59  -^    L-g.  588.     Tlte   delivery  of 
fsuteln'  ;ioVptopetty-.ife.  ;:  e,K,osed  land  catnes  .itl,  ..  the  pos- 


200 


INDIANA  PROBATE  LAW. 


144 


chase-money  is  paid  or  a  conveyance  executed,  such  real  estate, 
for  all  the  purposes  of  the  administration,  will  be  regarded  as 
converted  into  money,  and  all  the  purchase-money  remaining  un- 
paid, in  whatever  form  it  may  be,  or  however  secured,  belongs  to 
the  decedent's  executor  or  administrator,  and  not  to  his  heirs  or 
devisees/* 

Where  real  estate  has  been  directed  by  will  to  be  uncondi- 
tionally sold,  under  the  doctrine  of  equitable  conversion,  it  will 
be  deemed  converted  into  personalty  from  the  moment  of  the 
testator's  death,  and  the  proceeds,  when  it  is  sold,  are  assets  in 
the  hands  of  the  executor.'"  But  this  doctrine  is  qualified  to  the 
extent  that  where  the  sale  directed  is  not  unconditional,  conver- 
sion does  not  take  place  until  the  event  transpires  when  the  con- 
version should  be  made.-" 


session  of  personal  property  thereon. 
Ferraris  v.  Kyle,  19  Nev.  435,  14 
Pac.  529. 

"Henson  v.  Ott,  7  Ind.  512;  Cooper 
V.  Cooper,  21  Ind.  124. 

"Rumsey  v.  Durham,  5  Ind.  71; 
Nelson  v.  Nelson,  26  Ind.  App.  331, 
75  N.  E.  679;  Clark  v.  Worrall,  33 
Ind.  App.  49,  68  N.  E.  699;  McClure's 
Appeal,  72  Pa.  St.  414;  Hammond  v. 
Putnam,  110  Mass.  232;  Stagg  v. 
Jackson,  1  N.  Y.  206 ;  Comer  v.  Light, 
—  Ind.  — ,  93  N.  E.  660.  In  this 
last  case  the  court  say:  "The  fiction 
of  law  that,  under  a  simple  direction 
to  sell  and  divide  the  proceeds,  con- 
version into  money  will  be  held  in  eq- 
uity to  have  taken  place  at  the  date  of 
the  death  of  the  testator,  and  that  eq- 
uity will  treat  that  as  done  which  is 
directed  to  be  done,  and  it  will  be 
treated  as  that  species  of  property 
into  which  it  is  directed  to  be  con- 
verted, is  grounded  upon  equitable 
considerations,  and  is  interposed  for 
the  purpose  of  carrying  out  the  inten- 
tion  of  testators   so   far  as  that  can 


be  done  within  the  rules  of  law,  and 
generally  for  the  purpose  of  equality, 
and  doing  equity  between  heirs  or 
next  of  kin,  where  no  other  rights 
intervene;  but  it  has  never  been  un- 
derstood that  a  testator  can  change 
realty  to  personalty,  or  vice  versa, 
by  the  mere  declaration  that  it  shall 
be  one  or  the  other,  and  an  examina- 
tion of  the  cases  will  disclose  that  the 
fiction  of  constructive  conversion  is 
grounded  upon  the  proposition  that, 
in  the  absence  of  intervening  interests 
or  rights,  the  testator's  intention,  as 
it  affects  the  beneficiary,  shall  con- 
trol; but  when  the  question  is  one 
between  the  beneficiary  and  the  trus- 
tee of  a  mere  power  of  sale,  as  to 
possession  before  sale,  the  right  of 
the  beneficiary  is  superior,  or,  if  the 
rights  of  third  persons  attach  or  in- 
tervene before  sale,  the  fiction  is  de- 
stroyed." 

"-"  Comer  v.  Light,  —  Ind.  — ,  93  N. 
E.  660;  Holland  v.  Cruft,  3  Gray 
(Mass.)  162;  Savage  v.  Barnham,  17 
X.  Y.  561. 


§    144  DISPOSITION    OF    PERSONAL    PROPERTY.  201 

Mortgages  and  trust  deeds  made  to  secure  money  to  the  de- 
cedent belong  to  his  personal  representative.-^ 

In  general,  the  term  personalty  has  a  wider  meaning  in  the 
United  States  than  in  England,  and  includes  shares  of  stock  in 
corporations  of  various  kinds,  and  other  evidences  of  value  not 
possessing  intrinsic  worth."  Manure  from  the  barnyard  of  a 
homestead  or  farm,  although  not  incorporated  with  the  ground, 
but  piled  for  future  use,  belongs  to  the  land,'='  though  it  has  been' 
decided  that  manure  in  heaps  is  personalty."*  But  where  manure 
has  been  made  in  a  livery  stable,  or  in  some  manner  not  connected 
with  agriculture  or  husbandry,  it  is  held  to  be  personal  property 
and  to  belong  to  the  executor  or  administrator.-^ 

Where  land  is  sold  and  the  trees  are  reserved,  such  trees  be- 
come personalty  and  pass  to  the  personal  representative  of  the 
person  reserving  them.'"  Trees  growing  in  a  nursery,  where  they 
have  been  reared  for  the  purpose  of  sale  and  removal,  are  per- 
sonal property  and  should  be  charged  to  the  executor  or  adminis- 
trator.'' The  general  rule  is  that  trees,  vines,  shrubs,  and  the 
fruit  and  products  therefrom  follow  the  title  of  the  land  upon 
which  they  grow,  and  so  long  as  they  are  not  severed  will  de- 
scend to  the  heirs.''  It  is  only  some  special  fact  or  condition 
that  will  give  the  executor  or  administrator  any  interest  in  them. 

Fencing  of  all  and  every  kind,  although  it  may  be  temporarily 
detached  from  the  realty,  belongs  to  and  goes  with  the  land.  But 
rails  in  stacks  not  intended  for  use  as  fencing  pass  to  the  executor 
or  administrator  as  personalty.'" 

^  Smith  V.  Dver,  16  Mass.  18;  Long        ='  Corey  v.  Bishop,  48  N.  H.  146. 
V    OTallon,    19   How.    (U.    S.)    116,        « Daniels  v.  Pond,  21  Pick.  (Mass.) 

15  L    ed    550:   Burton  v.   Hintrager,  367,  2,2  Am.  Dec.  269;  Snow  v.  Per- 

18  Iowa  348;  Williams  v.  Ely,  13  Wis.  kins,  60  N.  H.  493,  49  Am.  Rep.  333. 
1-  Copper  V.  Wells,  1  N.  J.  Eq.  10.  =•=  Redfield  on  Wills,  151. 

^-  Dartington     Per.     Prop.,     p.     2 ;        ''  Hirth  v.  Graham,  50  Ohio  St.  5/, 

Somcrby  v.  Buntin.  118  Mass.  279,  19  33  N.  E.  90,  40  Am.  St.  641,  19  L.  R. 

Am.  Rep.  459.  A.  721n. 

=^Fay  V.  Muzzey,  13  Gray   (Mass.)         ^7  Am.  &  Eng.  Encyc.  Law,  241; 

53.    74    Am.    Dec.    619;    Plumer    v.  Williams  Extrs.  708;   Price  v.  Bray- 

Pl'umer.    30    N.    H.    558;    Norton    v.  ton,  19  Iowa  309. 
Craig.  68  Me.  275.  "Clark  v.  Burnside,  15  111.  62. 


202  INDIANA    PROBATE    LAW.  8    145 

A  debt  owing  to  the  decedent  from  the  person  acting  as  his 
executor  or  administrator  is  assets  of  the  estate  in  the  hands  of 
such  officer  and  should  be  charged  to  him.^°  Likewise  a  debt  due 
from  an  heir  or  legatee,  and  it  is  the  duty  of  the  executor  or  ad- 
ministrator to  charge  himself  with  it,  and  if  it  is  not  paid,  the 
amount  of  the  debt  should  be  deducted  from  the  distributive 
share  of  the  heir  or  the  legacy  of  the  legatee. ^^ 

§  145.  Same — As  to  emblements. — The  emblements  and 
annual  crops  growing  on  the  land  at  the  time  of  an  intestate's 
death  pass  to  his  administrator  and  become  part  of  the  personal 
assets  of  the  estate.^-  The  words  "emblements"  and  "annual 
crops"  do  not  include  uncut  grass  growing  in  the  field,  which  de- 
scends with  the  land  to  the  heir.^^  Emblements  are  defined  by 
W^ebster  to  be  "the  produce  or  fruit  of  land  sown  or  planted;  the 
growing  crops  of  those  vegetable  productions  of  the  soil,  such  as 
grain,  garden  roots  and  the  like,  which  are  not  spontaneous,  but 
require  an  outla}'  of  cost  and  labor  in  one  part  of  the  year,  the 
recompense  for  which  is  to  arise  in  the  shape  of  a  crop  in  another 
part  of  the  same  year;  used  especially  in  the  plural.  The  produce 
of  grass,  trees  and  the  like  is  not  signified  by  the  term."  As  de- 
fined by  Tiedeman,  "Emblements  are  the  profits  which  the  tenant 
of  an  estate  is  entitled  to  receive  out  of  the  crops  which  he  had 

™  Bigelow  V.   Bigelow,   4  Ohio   138,  administrators,     and     they     are     not 

19  Am.  Dec.  591.  chargeable  therewith." 

^  Martin  v.  Martin,  56  Ohio  St.  333,        ""  Evans    v.    Hardy,    76    Ind.    527. 

46  N.  E.  981 ;  Keever  v.  Hunter,  62  Quoting  from  this  case :     "The  dis- 

Ohio  St.  616,  57  N.  E.  454;  New  v.  tinction  between  annual  crops,  merely 

New,    127    Ind.    576,   27    N.    E.    154;  vegetable    productions    of    the    soil, 

Holmes  v.  ^IcPheeters,  149  Ind.  587,  raised  by  labor  bestowed  during  the 

49  N.  E.  452.  year,    and    trees,    fruits    and    grass, 

^-  Rodman  v.  Rodman,  54  Ind.  444.  which  are,  to  a  greater  or  less  extent, 

In  this  case  it  is  said:  "But  this  re-  of  spontaneous  growth,   may  be  said 

quirement   of  the  law   refers   only  to  to  be  well  recognized  and  firmly  es- 

crops    which    have    been    grown,    or  tablished    by    the     authorities.       The 

which,  at  the  death  of  the  decedent,  words      'emblements'      and      'annual 

were  growing  upon   decedent's   land;  crops,'  used  in  the  act  concerning  de- 

and  crops  which  are  not  only  grown,  cedents'  estates,  do  not,  therefore,  in- 

but  the  seed  of  which  are  planted  or  elude    uncut    grass    growing    in    the 

sown,  upon  the  decedent's  land  after  field,  which  descends  with  the  land  to 

his  death,  do  not  ordinarily  go  to  his  the  heir." 


§    145  DISPOSITION    OF    PERSONAL    PROPERTY.  203 

planted,  and  which  have  not  been  harvested  when  his  estate  ter- 
minates."^* And  all  emblements  and  annual  crops  planted  and 
grown  after  the  death  of  the  decedent  are  not  chargeable  to  his 
personal  representative,  but  belong  to  the  heir.^^ 

The  term  includes  those  annual  agricultural  products  which 
demand  culture  as  distinguished  from  those  which  grow  spon- 
taneously; crops  which  require  annual  planting,  or,  like  hops, 
annual  training  and  culture.  Emblements  thus  include  corn, 
potatoes,  and  most  garden  vegetables,  but  not  fruits,  and  gener- 
ally not  grass.  They  are  deemed  personal  property  and  pass  as 
such  to  the  executor  or  the  administrator  of  the  occupier,  instead 
of  going  to  the  heir,  if  he  die  before  he  has  cut,  reaped  or  har- 
vested them.  The  term  includes  eveiy  product  of  the  earth  yield- 
ing an  annual  profit,  as  the  result  of  labor,  as  corn,  wheat,  grain, 
hops,  saffron,  flax,  melons  and  the  like.^° 

Mr.  Woerner  says :  "The  reason  of  the  rule  is,  that  where  the 
occupant  of  land  has  sown  or  planted  the  soil  with  the  intention 
of  raising  a  crop,  and  his  estate  determines  without  his  fault 
before  harvest  time,  he  should  not  lose  the  fruit  of  his  labor,  to 
accomplish  which  the  law  gives  to  him,  or,  if  the  tenancy  is  ended 
by  his  death,  to  his  executors  or  administrators,  the  profit  of  the 
crop."^' 

As  between  the  heir  and  the  administrator,  emblements  belong 
to  the  latter.  But  the  administrator  is  not  entitled  to  growing 
crops  that  were  sown  or  planted  after  the  death  of  the  intestate. 
But  a  question  of  more  difficulty  arises  where  the  administrator 
sells  land  of  the  intestate  upon  which  are  growing  crops  sown 
after  the  intestate's  death.  As  to  whether  such  crops,  as  between 
the  vendor  and  vendee,  pass  with  the  land  or  not,  courts  have 
come  to  dift'erent  conclusions.  In  this  state  the  court  has  held 
that  the  purchaser  of  real  estate  at  an  administrator's  sale  thereof 
acquires  no  title  to  crops  growing  on  the  land  at  the  time  of  the 
sale  which  were  sown  by  the  heirs  or  their  tenants  after  the  death 

'■"  Tiedeman  on  Real  Property,  §  70 ;  Rodman  v.  Rodman,  54  Ind.  444. 

Miller  v.  Wohlford,  119  Ind.  305,  21  ^Century  Diet;   Reiff  v.  Reiff,  64 

N.  E.  894.  Pa.  St.  134. 

*=Kid\ve]l  V.   Kidwell,  84  Ind.  224;  "Woerner  Am.  Law.  Admin.,  §  282. 


204 


INDIANA  PROBATE  LAW. 


§  146 


of  the  decedent;  nor  will  a  statement  made  by  the  administrator 
at  such  sale  that  the  crops  are  not  reserved  prejudice  the  rights 
of  the  heirs  or  estop  them  from  claiming  the  crops.^® 

Where  the  law  gives  emblements  to  the  executor  or  adminis- 
trator, it  also  gives  to  him  the  right  to  enter  upon  the  land  to 
han-est,  gather,  and  market  them.^" 

Annual  crops  growing  upon  the  land  of  a  decedent  at  the  time 
of  his  death  are  personal  estate,  and  go  alike  to  the  executor  or 
administrator,  and  not  to  the  devisee  or  heir,  and  such  crops 
should  be  charged  to  and  accounted  for  by  sucli  personal  repre- 
sentative.*" 

§  146.  Same — As  to  fixtures. — Fixtures  belong  to  that 
class  of  property  which  lies  on  the  boundary  between  real  and 
personal  property,  and  for  this  reason  courts  and  writers  have 
found  it  difficult  to  formulate  a  comprehensive  and  satisfactory 
definition  of  the  term.     They  are  annexations  to  the  freehold 


''Barrett  v.  Choen,  119  Ind.  56,  58, 
20  N.  E.  145,  21  N.  E.  322,  12  Am. 
St.  363.  In  this  case  the  court  saj^: 
"Ordinarily,  as  between  vendor  and 
vendee,  growing  crops  pass  with  the 
freehold  and  as  a  part  of  the  free- 
hold, but  this  only  applies  as  to  grow- 
ing crops  which  belong  to  the  vendor. 
Growing  crops  belonging  to  some- 
body else  do  not  pass.  The  vendor 
cannot  pass  the  title  to  that  which 
does  not  belong  to  him.  This  is  a 
proposition  too  plain  to  require  the 
citation  of  authorities.  The  pur- 
chaser at  the  administrator's  sale 
acquired  title  to  the  freehold,  and  to 
whatever  belonged  to  it  at  the  time 
of  his  purchase,  but  he  acquired  noth- 
ing more.  The  appellees  were  not 
the  vendors  of  the  purchaser;  he  ac- 
quired his  title  from  the  decedent 
through  the  administrator.  The  ap- 
pellees sowed,  planted  and  cultivated 
the  crops  in  controversy,  and  during 
the  time  were  rightfully  in  possession 
of  the  real  estate,  and  had  the  right 


to  cultivate  it.  The  crops  were 
therefore  no  part  of  the  freehold,  but 
personal  property  belonging  to  the 
appellees.  Under  the  circumstances, 
the  appellant  had  no  interest  in  the 
crops  or  claim  upon  them." 

""  Penhallow  v.  Dwight,  7  Mass.  34, 
5  Am.  Dec.  21.  The  phrase  "emble- 
ments and  annual  crops"  used  in  the 
statute  does  not  include  grass  uncut 
and  growing  on  the  land  at  the  de- 
cedent's death ;  nor  fruit  on  the  tree. 
The  distinction  between  annual  crops, 
merely  vegetable  productions  of  the 
soil  raised  by  labor  bestowed  during 
the  year,  and  trees,  fruits  and  grass, 
which  are  to  a  greater  or  less  extent 
of  spontaneous  growth,  is  now  well 
recognized  and  established  by  the  au- 
thorities. Evans  v.  Hardy,  76  Ind. 
527;  Kain  v.  Fisher  6  N.  Y.  597; 
Mitchell  V.  Billingsley,  17  Ala.  391. 

^''Kluse  V.  Sparks,  10  Ind.  App. 
444.  36  N.  E.  914,  Zl  N.  E.  1047; 
Humphrey  v.  Merritt,  51   Ind.   197. 


§    146  DISPOSITION    OF    PERSONAL    PROPERTY.  205 

which  may,  according  to  concomitant  circumstances,  assume  the 
character  of  either  real  or  personal  estate/^  They  are  removable 
or  not  according  to  the  circumstances  of  each  case. 

In  its  technical  sense  the  word  signifies  such  things  only  of  a 
personal  nature  as  have  been  annexed  to  the  real  estate,  and 
which  may  be  afterward  severed  or  removed  by  the  party  who 
united  them,  or  his  personal  representatives,  against  the  will  of 
the  owner  of  the  freehold.'*" 

This  subject  is  of  interest  in  this  connection  only  in  so  far  as 
it  relates  to  the  question  when  it  arises  between  the  administrator 
and  the  heir,  or  between  the  executor  of  a  life  tenant  and  the 
remainderman  or  reversioner. 

In  determining  whether  or  not  a  chattel  attached  to  real  estate 
becomes  a  fixture,  much  now  depends  upon  the  purpose  for  which 
it  was  attached  and  the  intention  of  the  parties  at  the  time.  By 
the  old  rule  if  a  personal  chattel  was  so  affixed  to  the  land  as  to 
be  incapable  of  being  detached  therefrom  without  violence  and 
injury  to  the  freehold,  it  became  a  fixture  and  belonged  to  the 
real  estate,  but  if  not  so  annexed  it  remained  a  chattel.  But  the 
trend  of  the  cases  now  is  to  hold  that  physical  annexation  to  the 
realty  is  neither  necessary  nor  sufficient  to  fix  the  character  of  the 
chattel.  The  criterion  by  which  to  determine  the  question  de- 
pends on  the  circumstances  of  each  case  as  viewed  in  the  light  of 
policy  and  intention  of  the  parties. ^^  An  article  which  would 
otherwise  be  deemed  a  fixture  may,  by  severance  and  the  under- 
standing of  the  parties,  become  personal  property.**  A  fence,  or 
even  a  house,  placed  on  the  land  of  another  with  the  mutual  in- 

"  1  Washburn  Real  Prop.  18.  or  is  not  a  fixture.     Binkley  v.  Fork- 

'-■  Woerner's      Am.      Law     Admin.,  ner,  117  Ind.  176,  19  N.  E.  753,  3  L. 

§  283.  R.  A.  33n ;  Button  v.  Ensley,  21  Ind. 

"Providence   Gas    Co.   v.   Thurber,  App.  46,  51  N.  E.  380,  69  Am.  St.  340; 

2  R.  I.  15,  55  Am.  Dec.  621 ;  Quimby  McFarlane    v.    Foley,    27    Ind.    App. 

V.  Manhattan  Cloth  &c.  Co.,  24  N.  J.  484,  60  N.  E.  357,  87  Am.  St.  264.    It 

Eq.  260.     The  nature  of  the  articles,  is    a    question    of   fact   in    each   case 

the  manner  in  which  they  are  affixed  whether    or    not    an    article    on    real 

and  the  intention  of  the  party  making  estate  is  a  fixture.     Balliett  v.  Hum- 

the  annexation,  together  with  the  pol-  phreys,  78  Ind.  388. 
icy  of  the  law,  are  controlling  factors        **  Sampson  v.   Graham,   96   Pa.   St. 

in  determining  whether  an  article  is  405. 


206  INDIANA  PROBATE  LAW.  §  147 

tention  that  it  is  to  be  held  as  the  builder's  property  is  to  be  con- 
sidered as  personal  property  and  may  be  removed.*^  Machinery 
placed  upon  leased  premises  which  can  be  moved  without  per- 
manent injury  to  the  real  estate  is  personal  property.*''  And  if 
articles  are  attached  to  real  estate  under  an  agreement  that  they 
are  to  remain  personal  property,  such  articles  will  not  become 
part  of  the  real  estate.*^ 

The  rule  as  between  the  executor  and  devisee  is  that  the  lands 
shall  go  to  the  devisee  in  the  same  condition  as  it  would  have  de- 
scended to  the  heir,  therefore  he  would  be  entitled  to  all  the 
articles  affixed  to  the  land  whether  they  were  annexed  before  or 
after  the  devise,  and  the  executor,  as  against  the  devisee,  is  en- 
titled to  such  fixtures  only  as  the  administrator  would  be  entitled 
to  as  against  the  heir.  As  between  the  administrator  and  the 
heir  the  rule  is  that  nothing,  after  having  been  annexed  to  the 
freehold,  can  be  severed  and  removed  by  the  administrator,  unless 
it  clearly  appears  upon  good  and  sufficient  reason  that  it  was  not 
the  purpose  to  make  the  annexation  permanent,  for  the  rule  will 
be  strictly  applied  in  favor  of  the  heir.*^ 

§  147.  Same — As  to  rents. — On  the  death  of  one  intestate 
the  title  to  his  real  estate  is  cast  immediately  upon  his  heirs,  and 
they  are  thereafter  entitled  to  all  accruing  rents  and  profits  aris- 
ing from  such  real  estate.     But  whatever  rents  had  accrued  at 

'"  Brown  v.  Turner,  113  Mo.  27,  20  612,  63   N.   E.  774.     Machinery  used 

S.  W.  660.     In  order  that  a  building  for    manufacturing    purposes    simply 

will  constitute  an  immovable  fixture,  fastened  to  the  floor  of  the  building, 

it  must  be  actually  or  constructively  and  which  can  be  taken  up  easily  and 

annexed  to   the  land,   it  must  be  ap-  used  as  readily  in  one  building  as  in 

propriate  to  the   use  of  that  part  of  another,    is    considered    as    personal 

the  realty  with  which  it  is  connected,  property,  and  should  be  inventoried, 

and  the  intention  of  the  person  erect-  Gale  v.  Ward,   14  Mass.  352,   7  Am. 

ing  it  to  make  it  a  permanent  acces-  Dec.  223;  Hill  v.  Wentworth,  28  Vt. 

sion    to    the    freehold    must    appear.  428. 

The   modern    doctrine    does    not    de-  *^  Young   v.    Baxter,    55    Ind.    188; 

pend  upon  mere  physical  annexation  Price  v.  Malott,  85  Ind.  266. 

to  create  a  fixture.     Button  v.   Ens-  "Broom's  Legal  Maxims  426;  Wil- 

ley,  21   Ind.   App.  46,   51   N.   E.  380,  Hams    Extrs.    741;    13    Am.    &    Eng. 

69  Am.  St.  340.  Encyc.  Law  635. 

^^  Gordon   v.    Miller,    28    Ind.    App. 


§147  DISPOSITION    OF    PERSONAL    PROPERTY.  207 

the  time  of  his  death  belong  to  his  administrator.*''  The  statute 
provides  that  executors  and  administrators  shall  have  the  same 
remedies  to  recover  rents,  and  be  subject  to  the  same  liabilities  to 
pay  them,  as  their  testators  and  intestates.^" 

A  lease  for  a  term  of  years,  with  its  rental  and  profits,  is  per- 
sonal property,  which,  on  the  death  of  the  lessee,  should  be 
charged  to  his  personal  representative.^^  And  where  the  legal 
title  to  land  is  not  vested  by  the  will  in  the  executor,  he  is  not 
entitled  to  the  rents  accruing  upon  such  land,  but,  as  in  case  of 
intestacy,  the  heir  or  devisee  is  entitled  to  such  rents  so  long  as 
the  title  in  him  remains  undivested,  it  being  said  in  one  case  that 
"as  a  general  rule  an  executor,  as  such,  has  no  authority  to  take 
possession  of  the  real  estate  of  his  testator,  or  to  receive  the  rents 
and  profits  thereof,  in  the  absence  of  an  express  provision  of  the 
will  authorizing  him  to  do  so.  The  only  exception  to  this  rule  is 
where  there  is  no  heir  or  devisee  of  the  testator  present  at  the 
time  of  his  death  to  take  possession  of  such  real  estate."" 

But  as  in  the  case  of  an  administrator,  whatever  rent  or  roy- 
alty had  matured  and  become  due  in  the  lifetime  of  the  testator 
would  go  to  his  executor  and  not  to  the  heirs  at  law  or  devisees.^^ 

The  receipt  by  the  administrator,  except  when  otherwise  spe- 
cially provided,  of  the  rents  and  profits  of  the  real  estate  of  an 
intestate  accruing  after  his  death,  makes  such  administrator  the 
trustee  of  the  heirs,  but  not  of  the  creditors  of  the  estate ;  but  the 
application  by  the  administrator  of  such  rents  and  profits  to  the 
payment  of  debts  against  the  decedent's  estate  does  not  create 
any  claim  against  the  estate  in  favor  of  the  heirs.  He  can  only 
receive  such  rents  and  profits  either  as  the  agent  of  or  in  trust  for 

''  First  Nat.  Bank  v.  Hanna,  12  Ind.  Mark  v.  North,  155  Ind.  575,  57  N.  E. 

App.  240,  39  N.  E.1054;  King  v.  An-  902;   Shipley  v.  Smith,   162  Ind.  526, 

derson,  20  Ind.  385;  Trimble  v.  Pol-  70  N.  E.  803. 

lock,  n  Ind.  576;  IMcCIead  v.  Davis,  ""Hendrix  v.  Hendrix,  65  Ind.  329; 

83  Ind.  263;  Humphries  v.  Davis,  100  Doe   v.   Lanius,  3   Ind.   441,   56  Am. 

Ind.  369.  Dec.  518n;  Burns'  R.  S.  1908,  §§  2935, 

^  Burns'  R.  S.  1908,  §  8067.  2936. 

"  Smith    V.    Dodds,    35    Ind.    452 ;  "  McDowell    v.    Hendrix,    67    Ind. 

Schee  v.  Wiseman,  79  Ind.  389 ;  Cun-  513 ;  King  v.  Anderson,  20  Ind.  385. 
ningham    v.    Baxley,    96    Ind.    367; 


208  INDIANA  PROBATE  LAW.  §  147 

the  heirs,  and  becomes  personally  liable  to  them,  and  is  bound  to 
account  to  such  heirs  therefor.'* 

It  has  been  held  that  such  an  application  by  an  executor  or  ad- 
ministrator, of  the  assets  and  profits  held  by  him  for  the  heirs,  is 
but  an  improper  commingling  of  the  money  and  business  of  two 
estates  at  the  same  time  in  his  hands,  and  a  consequent  conversion 
of  the  money  in  his  hands  belonging  to  the  heirs  makes  him  per- 
sonally liable  to  them.  The  estate,  as  an  entity,  separate  from  the 
executor  or  administrator,  is  but  a  fund,  an  inanimate  thing,  in- 
capable of  becoming  a  party  to  such  conversion,  and  cannot  be 
made  liable  for  it  to  those  whose  money  has  been  so  converted. °° 

At  common  law,  where  the  rent  was  payable  as  an  entirety,  and 
the  demise  was  by  the  owner  of  a  life  estate,  his  death  terminated 
the  right  to  recover  any  rent  at  all,  but  this  rule  has  been  changed 
by  statute  in  this  state,  and  it  is  now  provided  that  "when  a  ten- 
ant for  life  who  shall  have  demised  any  lands  shall  die  on  or  after 
the  day  when  any  rent  becomes  due  and  payable,  his  executor  or 
administrator  may  recover  from  the  under  tenant  the  whole  rent 
due;  if  he  die  before  the  day  when  any  rent  is  to  become  due, 
they  may  recover  the  proportion  of  rent  which  accrued  before  his 
death,  and  the  remainderman  shall  recover  the  residue."'® 

Upon  the  question  of  liability  for  rents  the  rule  is  laid  down  by 
one  writer  as  follows :  "Whenever  an  executor  or  administrator 
comes   into  possession   of   real   estate   by   virtue   of   his   office, 

'**  Evans    v.    Hardy,    Id    Ind.    527;  plication  by  the  administrator  of  such 

State  V.  Barrett,  121  Ind.  92,  22  N.  E.  rents,   issues  and  profits   to  the  pay- 

969;  Trimble  v.  Pollock,  11  Ind.  576;  ment   of  the   debts   against   his   dece- 

McClead  v.  Davis,  83  Ind.  263;   Pea-  dent's    estate,    does    not    create    any 

cocke  V.  LefHer,  74  Ind.  327;  Hankins  claim  against  the  estate  in  favor  of 

V.    Kimball,   57   Ind.   42;    Rodman  v.  the  heirs.     This  results  from  the  na- 

Rodman,    54    Ind.    444;    Hendrix    v.  ture  of  the  liability  the  administrator 

Hendrix,  65  Ind.  329;  Robb's  Appeal,  incurs  to  the  heirs  by  receiving  money 

41  Pa.  St.  45;  Mills  v.  Merryman,  49  belonging    to    them;    and    from    the 

Me.  65;  Lucy  v.   Lucy,  55   N.   H.  9;  doctrine    recognized    in   the    cases    of 

M'Coy  v.  Scott,  2  Rawle   (Pa.)   222,  Rodman    v.    Rodman,    54    Ind.    444; 

19  Am.  Dec.  640;  Terry  v.  Ferguson,  Hankins  v.  Kimball,  57  Ind.  42. 
8  Port.   (Ala.)  500.  ^Burns'  R.  S.  1908,  §  8069;  Henry 

■^^  Evans  v.  Hardy,  76  Ind.  527.   The  v.  Stevens.  108  Ind.  281,  9  N.  E.  356; 

court  says  in  this  case :  "But  the  ap-  Dorsett  v.  Gray,  98  Ind.  273. 


§148  DISPOSITION    OF    PERSONAL    PROPERTY.  209 

whether  by  force  of  statute,  by  order  of  the  court,  or  under  the 
terms  of  a  will,  he  must  charge  himself  with  all  rents,  profits,  and 
proceeds  of  sale  arising  therefrom."" 

The  administrator  of  a  deceased  tenant  cannot,  by  assigning 
the  lease,  relieve  himself  from  the  obligation  to  pay  rent  accru- 
ing after  the  death  of  his  intestate. ^^ 

§  148.  Same — As  to  interest  and  profits. — Where  an  ad- 
ministrator or  executor,  pursuant  to  some  contract  or  arrange- 
ment made  by  the  decedent  before  his  death,  or  by  direction  of 
the  testator  in  his  will,  or  by  order  of  the  court,  undertakes  to 
carry  on  the  business  or  trade  of  the  decedent,  all  the  proceeds 
and  profits  arising  from  the  conduct  of  such  business  or  trade 
must  be  charged  to  him  and  accounted  for.^^ 

It  is  not  within  the  general  scope  of  his  powers  or  authority 
for  an  administrator  or  executor  to  carry  on  the  business  of  his 
decedent,  and  if  he  does  so  without  the  order  of  some  proper 
court,  or  the  authority  of  a  will,  he  does  so  at  his  own  risk,  and 
will  become  personally  liable  for  all  losses  sustained,  while  he 
will  be  required  to  account  to  the  estate  for  all  profits  he  may 
make.*^"  The  estate  must  be  protected  from  liability  at  all  times, 
and  is  interested  in  the  business  only  to  the  extent  of  the  profits.*'^ 

But  where  the  executor  or  the  administrator  with  the  will 
annexed  continues  the  business  of  the  testator  in  good  faith  in 
compliance  with  a  direction  to  that  effect  in  the  will,  all  losses  by 
bad  debts,  cost  of  personal  property  purchased  to  replace  articles 
worn  out  or  consumed  in  conducting  the  business,  all  necessary 
expenses  or  repairs,  etc.,  are  properly  chargeable  against  the 
estate.^- 

°'  Woemer  Am.  Law  Admin.,  §  513.  "  Rose,   Estate  of,  80   Cal.   166,  22 

''  Carley  v.  Lewis,  24  Ind.  23.  Pac.  86 ;  In  re  Woods  Estate,  1  Ash. 

"Kellar   v.   Beelor,   5   T.   B.   Mon.  (Pa.)   314. 

(Ky.)  573;  Hooper  v.  Hooper,  29  W.  ""In  re  Jones,  103  N.  Y.  621,  9  N. 

Va.  276,  1  S.  E.  280.  E.  493,  57  Am.  Rep.  775 ;  Cline's  Ap- 

"Schouler    Extrs.    &   Admrs.    325;  peal,  106  Pa.   St.  617. 
Lucht   V.   Behrens,  28   Ohio   St.   231, 
22  Am.  Rep.  378. 


14 — Pro.  Law. 


2IO  INDIANA  PROBATE  LAW.  §  148 

The  good  will  of  a  decedent's  business  is  an  asset  of  the  estate 
with  which  an  administrator  may  be  properly  charged.*'^ 

An  administrator  or  executor,  in  so  far  as  the  dealings  with 
the  property  of  the  decedent  are  concerned,  is  held  to  the  strict 
rule  of  accountability  applicable  to  other  trustees,  and  he  will  not 
be  allowed  to  invest  his  decedent's  estate  so  as  to  make  a  profit  to 
himself.  If  he  should  make  such  investment  and  any  loss  accrues 
by  reason  thereof,  such  loss  will  fall  entirely  upon  such  executor 
or  administrator  alone,  and  not  upon  the  estate,  while  the  profit, 
if  any,  upon  such  investment  accrues  to  the  benefit  of  the  estate."* 

One  who  knowingly  receives  from  a  trustee  the  trust  money  or 
property  in  satisfaction  of  an  individual  debt  of  the  trustee  to 
him,  must  be  regarded  as  participating  in  the  fraudulent  diversion 
of  the  property,  and  is  liable  to  the  beneficiary  of  the  trust."^ 

It  is  not  the  duty  of  the  administrator  to  so  handle  the  property 
of  his  intestate  as  to  make  profit  for  the  estate  out  of  such  prop- 
erty. The  purpose  of  the  law  is  best  served  by  a  prompt  conver- 
sion of  the  assets  in  his  hands  into  money  and  the  payment  of  the 
debts  and  liabilities  of  the  estate.  But  if  interest-bearing  or 
profit-making  assets  come  to  his  hands,  he  must  charge  himself 
with  whatever  he  may  receive  during  the  course  of  the  adminis- 
tration in  the  way  of  dividends,  interest,  or  profits.  If,  through 
fraud  or  otherwise,  he  should  fail  to  account  for  interest  on  notes, 

"'  Thompson  v.  Winnebago   Co.,  48  the  trustee  obtains  advantages  by  way 

Iowa   155;    In   re   Randell's   Estate,  8  of  personal   credit   and   otherwise,   to 

N.  Y.  S.  652.  which   he   is   not   justly  entitled,   and 

"•  Gilbert  v.  Welsch,  75  Ind.  557.  good  policy,  with  a  view  to  the  faith- 
"Whether  a  conversion  of  the  trust  ful  conduct  of  those  who  are  made 
money  or  property  has  occurred,  de-  trustees,  requires  that  they  should,  in 
pends  somewhat  upon  the  intention  such  a  case,  take  the  risk  of  loss,  and, 
of  the  trustee  in  doing  the  act  which  that  there  should  be  no  inquiry  per- 
is claimed  to  constitute  the  conver-  mitted  into  the  good  faith  of  such 
sion,  as  well  as  upon  the  nature  and  transactions,  the  secret  springs  of 
consequences  of  the  act,  but  the  rule  Vihich,  in  most  cases,  it  would  proba- 
which  holds  the  trustee  personally  re.  bly  be  impossible  to  discover." 
sponsible  for  losses  incurred  of  "''Austin  v.  Willson,  21  Ind.  252; 
money  deposited  or  invested  in  his  Wallace  v.  Brown,  41  Ind.  436; 
own  name,  rests,  as  we  conceive,  upon  Fleece  v.  Jones,  71  Ind.  340;  Rogers 
different  considerations.  By  deposits  v.  Zook,  86  Ind.  237. 
and   investments   in    his    own    name. 


§149  DISPOSITION    OF    PERSONAL    PROPERTY.  211 

and  bonds  of  the  estate,  in  the  absence  of  any  showing  as  to  the 
actual  interest  collected,  the  probate  court  should  charge  him  with 
the  highest  legal  rate  during  the  entire  time  such  assets  were  in 
his  hands.'^ 

Where,  for  any  reason,  there  is  long  delay  in  the  settlement  of 
an  estate,  an  administrator  is  not  justified  in  retaining  money  in 
his  hands  that  is  yielding  no  profit.  To  protect  himself  he  should 
present  the  matter  to  the  proper  court  and  secure  authority  to 
invest  such  funds  for  the  benefit  of  the  estate,  otherwise  he  is 
liable  to  be  charged  with  interest  at  the  legal  rate  on  the  money 
idle  in  his  hands." 

If  an  administrator  uses  the  funds  of  the  estate  in  his  own 
business,  or  mingles  them  with  his  own  funds,  he  should  be 
charged  with  interest  thereon,  some  courts  going  to  the  extent  of 
charging  him  with  the  highest  rate  of  interest  and  compounding 
it  for  the  whole  time  such  funds  were  so  used  or  mingled.*'^ 

§  149.  Same — As  to  choses  in  action,  money,  stocks,  etc. — 
Choses  in  action,  rights,  credits,  and  the  like,  as  distinguished 
from  chattels,  are  most  applicable  to  such  matters  as  lie  in  ac- 
tions, as  debts  owing  the  intestate.  The  administrator  succeeds 
to  all  such  rights  of  action  against  third  persons  as  the  intestate 
had  at  the  time  of  his  death,  or  would  have  been  entitled  to  if 

**  Smithers  v.  Hooper,  23  Md.  273 ;  Green,  75  Ala.  162.  Where  an  admin- 
Scott  V.  Crews,  12  Mo.  261;  Ring-  istrator  was  held  liable  for  interest 
gold  V.  Stone,  20  Ark.  526;  Lommen  on  funds  of  the  estate  in  his  hands, 
V.  Tobiason,  52  Iowa  665,  3  N.  W.  where,  without  sufficient  excuse,  he 
715.  had    delayed   making  final    settlement 

"'Hough     V.     Harvey,     71     111.     72.  and   distribution  for  an  unreasonable 

Where    six    per    cent,    interest    com-  time.   In  re  Danforth's  Estate,  66  I\Io. 

pounded  was  charged  against  the  ad-  App.  586. 

ministrator  because  he  had  neglected  ""  Hook  v.  Payne,  14  Wall.  (U.  S.) 

to  make   annual   settlements.    Lloyd's  252,   20   L.    ed.   887;    Union   Bank   v. 

Estate.  82  Pa.  St.  143,  where  the  ad-  Smith,  4  Cranch  (U.  S.)  (C.  C.)  509; 

ministrator   was    charged    interest    on  Grigsby  v.  Wilkinson,  9  Bush   (Ky.) 

$25,000   in    cash   which   he   had   per-  91 ;    Williams    v.    Petticrew,    62    Mo. 

mitted  to  lie  idle  for  five  years,  there  460;    Troup    v.    Rice    55    Miss.    278; 

being    a    suit    pending    on    appeal    in  Merrifield   v.   Longmire,  66  Gal.   180, 

which  the  judgment  and  costs  aggre-  4   Pac.    1176;   McGloskey  v.   Gleason, 

gated     less     than     $13,000.      May    v.  56  Vt.  264,  48  Am.  Rep.  770. 


212  INDIANA  PROBATE  LAW.  §  149 

living.  The  administrator  is  entitled  to  the  intestate's  debts  of 
every  description,  whether  in  judgment  or  on  contract,  express  or 
implied,  written  or  verbal. 

A  right  to  damages  to  the  decedent's  real  estate,  which  accrued 
in  his  lifetime,  is  a  chose  in  action  in  tlie  hands  of  his  personal 
representative.^^ 

For  breaches  of  certain  covenants  the  right  of  action  is  in  the 
executor  or  administrator  of  the  deceased  covenantee  and  not  in 
his  heirs.  On  such  covenants  as  run  with  the  land  the  executor 
or  administrator  has  no  right  of  action  unless  it  can  be  shown 
that  there  had  some  special  damage,  by  reason  of  the  breach,  ac- 
crued to  the  deceased  covenantee  in  his  lifetime.'" 

Where  the  covenant,  though  it  be  one  which  ordinarily  runs 
with  the  land,  be  broken  and  the  ultimate  damages  for  such 
breach  accrue  to  the  decedent  in  his  lifetime,  the  right  of  action 
is  in  his  administrator  and  not  in  the  heir.  The  covenant  having 
been  broken  and  the  full  damages  accrued  during  the  lifetime  of 
the  covenantee,  there  was  no  covenant  to  run  with  the  land  and 
descend  to  the  heir.'^ 

Stocks,  bonds,  patents,  copyrights,  annuities,  mortgages,  fire 
insurance  policies  and  life  insurance  policies,  when  made  payable 
to  the  decedent's  personal  representative,  or  to  his  estate,  are  all 
considered  as  personal  property. 

Also  negotiable  paper  of  all  kinds;  debts  and  demands  of  every 

•"  Pittsburg  &c.  R.   Co.  v.  Swinney,  of  all  the  land,  having  a  perfect  title 

91  Ind.  586;  Church  v.  Grand  Rapids  to  it,  B   never  had,   nor  had  he  any 

&c.    R.    Co.,    70    Ind.    161;    Williams  right  to   get  possession   of  the  land. 

Extrs.,  1650.  Afterwards  B  died,  and  his  executor 

™]\rartin  v.  Baker,  5  Blackf.   (Ind.)  instituted  a  suit  to  recover   damages 

232.  for    the    breach    of    the  'covenant    o£ 

"^  Frink  v.  Bellis,  ZZ  Ind.  135,  5  Am.  seisin,  and  the  only  question  to  decide 

Rep.  193;  Junction  R.  Co.  v.   Sayers,  was    whether    the    right    to    maintain 

28  Ind.  318;  Burnham  v.  Lasselle,  35  the  suit  was  in  the  executor  or  in  the 

Ind.  425.  heir.     The  court  held  as  "there  was 

In  this  case  A  sold  to  B  a  piece  no  land  to  run  or  descend  to  the  heir, 
of  land  and  made  a  deed  for  the  and  consequently  there  was  no  cove- 
same,  with  full  covenants,  that  of  nant  to  run  or  descend  to  him.  This 
seisin  included,  when  A  had  no  title  cause  or  right  of  action  survived  and 
to  convey,  the  title  being  in  C,  and  was  properly  brought  by  the  execu- 
he  being  in  full  and  legal  possession  tor." 


§149  DISPOSITION    OF    PERSONAL    PROPERTY,  213 

description  owing  to  the  decedent,  or  to  his  estate,  seats  in  ex- 
changes, trade-marks,  good  will  in  business,  money,  together  with 
every  species  of  property  except  freehold  estates  in  lands,  and 
incorporeal  hereditaments  issuing  out  of  lands.'" 

Administrators  are  the  representatives  of  the  personal  property 
of  the  deceased,  and  not  of  his  wrongs,  except  so  far  as  the 
wrongful  act  complained  of  was  beneficial  to  the  estate. 

A  leasehold  estate  is  personal  property,  a  chattel  interest,  and 
does  not  descend  to  the  heirs,  but  passes  to  the  executor  or  admin- 
istrator, and  he  alone  can  maintain  an  action  for  possession,  or 
for  trespass." 

But  a  life  insurance  policy  issued  upon  the  life  of  the  decedent 
and  payable  to  some  beneficiary  named  therein,  other  than  the 
insured,  his  estate  or  personal  representatives,  does  not  pass  to 
his  executor  or  administrator  as  assets  of  the  estate,  but  the  pro- 
ceeds of  such  policy  belong  to  the  beneficiary  named  therein.^* 

Money  of  the  decedent  in  his  hands  at  the  time  of  his  death  is 
assets  in  the  hands  of  his  executor  or  administrator;  and  if,  as  a 
fact,  such  money,  or  part  thereof,  belongs  to  another  than  the 
decedent,  yet  if  it  has  become  so  far  mixed  with  money  and  prop- 
erty of  his  own,  before  his  death,  as  to  render  its  identification 
impossible,  it  passes  to  the  administrator  with  the  mass  of  the 
estate." 

"  Schouler  Per.  Prop.  22-51.  142  Mass.  248,  7  N.  E.  851.   In  Row- 

'"  Smith    V.    Dodds,    35    Ind.    452 ;  ley  v.  Fair  the  court  say :    "Notwith- 

Schee  v.  Wiseman,  79  Ind.  389;  Mc-  standing     the     technical     legal     title 

Carty  V.  Burnet,  84  Ind.  23;   Camp-  which    a    township    trustee    takes    in 

bell   V.  Hunt,   104   Ind.  210,  2   N.   E.  money  received  by  him  in  his  official 

363,  3  N.  E.  879.  capacity,    it   is   his   duty   not   only   to 

~*  Langford  v.  Freeman,  60  Ind.  46 ;  preserve  the  existence,  as  well  as  the 
Wilburn  v.  Wilburn,  83  Ind.  55 ;  Har-  identity  of  each  particular  fund  un- 
ley  V.  Heist,  86  Ind.  196,  44  Am.  Rep.  der  his  control,  but  to  hold  the 
285 ;  Damron  v.  Penn  &c.  Ins.  Co.,  money  so  received  in  some  suitable 
99  Ind.  478;  Pearcy  v.  Michigan  &c.  way  ready  to  meet  all  proper  de- 
Ins.  Co.,  Ill  Ind.  59,  12  N.  E.  98,  60  mands  which  may  arise  against  any 
Am.  Rep.  673 ;  ^McLean  v.  Equitable  one  of  such  funds,  or  to  be  conveni- 
&c.  Ins.  Soc,  100  Ind.  127,  50  Am.  ently  delivered  to  his  successor,  either 
Rep.  779.  upon  his  death  or  the  expiration  of 

"  Rowley  V.  Fair,  104  Ind.  189,  3  N.  his  term.    This  is  a  rule  of  general 

E.  860;  Attorney-General  v.  Brigham.  application    in    the    execution    of   all 


214  INDIANA  PROBATE  LAW.  §  I50 

Certificates  of  stock  are  not  securities  for  money  in  any  sense, 
much  less  are  they  negotiable  securities.  They  are  simply  the 
minutes  and  evidence  of  the  holder's  title  to  a  given  share  in  the 
property  and  franchises  of  the  corporation  of  which  he  is  a 
member.  ^"^ 

Dividends  which  have  accrued  upon  stocks  before  the  de- 
cedent's death  belong  to  the  executor  or  administrator  though 
such  dividends  were  not  declared  until  after  the  death  of  such 
decedent. ^^ 

Administrators  and  executors  will  be  held  to  a  reasonable  care 
with  respect  to  a  decedent's  property  which  comes  into  their 
hands,  or  under  their  control,  and  they  should  adopt  such  precau- 
tions against  loss  by  fire,  flood,  or  waste  of  any  kind,  and  exercise 
such  forethought  for  the  security  of  such  property  as  prudent 
men  are  accustomed  to  employ  in  reference  to  their  own  prop- 
erty.'^^ 

§  150.  Same — Property  fraudulently  conveyed. — It  seems 
settled  that  when  a  debt  cannot  be  coercively  collected  out  of 
property,  a  fraudulent  transfer  of  that  property  cannot  be  inter- 
fered with  by  a  creditor.  The  property  must  be  such  as  can  be 
reached  by  an  execution  or  the  transfer  will  not  be  set  aside. 
Such  transfer  can  only  be  assailed  by  creditors,  or  for  the  benefit 

trusts,    whether    public     or     private."  decedent  at  the  time  of  his  death,  are 

And,  "When,  however,  the  money  re-  personal  property  and  descend  to  the 

ceived   by    the    deceased   trustee    has  heirs  at  law,   subject  to  the  right  of 

been  so  far  converted  by  him  in  his  the  administrator  to  subject  the  same 

lifetime  as  to  render  its  identification  to   sale  in  the  manner  prescribed  by 

as  the  property  of  the  township  im-  the   laws   of   the   state.    Citizens'   &c. 

practicable,   the   administrator   is   not  Ry.  Co.  v.  Robbins,  128  Ind.  449,  26 

required,   and   ought   not   to   be   per-  N.  E.  116,  25  Am.  St.  445,  12  L.  R. 

mitted,  to  deliver  over  to  the  successor  A.  498. 

of  such  trustee  money  which  may  "  Welles  v.  Cowles,  4  Conn.  182, 
have  been  derived  from  other  sources,  10  Am.  Dec.  115;  Johnson  v.  Bridge- 
to  make  good  the  money  so  converted,  water  &c.  Mfg.  Co.,  14  Gray  (Mass.) 
except   in    payment    of   an    allowance  274. 

regularly  made  against  the  estate."  '^  Rubottom  v.  Morrow,  24  Ind.  202, 

'"  Mechanics'    Bank    v.    New    York  87  Am.  Dec.  324 ;  Cooper  v.  Williams, 

&c.  R.  Co.,  13  N.  Y.  599.    Shares  of  109  Ind.  270,  9  N.  E.  917. 
stock  in  a  corporation,  owned  by  the 


§    151  DISPOSITION    OF    PERSONAL    PROPERTY.  21 5 

of  creditors,  for,  as  between  the  parties  to  a  fraudulent  transfer 
of  property,  it  is  valid  and  binding.'^  For  this  reason  an  admin- 
istrator would  have  no  right  to  maintain  an  action  to  set  aside  a 
fraudulent  assignment  or  transfer  of  property  made  by  his  de- 
cedent in  his  lifetime,  merely  for  the  purpose  of  recovering  such 
property  for  distribution  to  the  heirs.^^ 

But  the  administrator  as  trustee  for  the  creditors,  in  his  fidu- 
ciaiy  capacity,  can  maintain  such  an  action.  A  man  has  no  right 
to  give  away  his  assets  to  his  friends  or  relatives,  without  reserv- 
ing property  enough  to  pay  his  just  debts;  therefore,  any  trans- 
fer, assignment  or  conveyance  of  personal  property  made  with 
intent  to  cheat,  hinder  or  delay  creditors,  will  be  regarded  as 
fraudulent,  and  may  be  set  aside  by  the  executor  or  administrator 
for  the  purpose  of  subjecting  such  property  to  the  uses  of  the 
estate.  The  requisites  of  a  complaint  in  such  an  action  are  the 
same  as  for  a  complaint  by  an  executor  or  administrator  to  set 
aside  a  fraudulent  conveyance  of  real  estate. ^^ 

As  such  fraudulent  transfer  of  property  is  good  as  between 
the  parties  thereto  and  their  heirs  or  representatives  and  binding 
upon  all  persons  except  creditors  of  the  decedent,  any  excess  in 
the  administrator's  hands  derived  from  property  fraudulently 
transferred  and  recovered  by  him,  after  the  payment  of  creditors, 
must  be  restored  to  the  fraudulent  vendee  from  whom  the  prop- 
erty was  taken.  It  is  not  proper  to  distribute  it  to  the  heirs  of  the 
fraudulent  vendor.^" 

§  151.  Mortgages  as  personal  property. — When  any  mort- 
gagee of  real  estate,  or  any  assignee  of  such  mortgagee,  shall  die 
without  having  foreclosed  the  equity  of  redemption  or  having 
received  payment  of  the  amount  secured  by  such  mortgage,  the 

"Cox     V.     Hunter,     79     Ind.     590;  Mikals,  11  Ind.  227;  Garner  v.  Graves, 

Bruker  v.  Kelsey,  12  Ind.  51;  Baugh  54  Ind.  188;  Martin  v.  Root,  17  Mass. 

V.    Boles,    35    Ind.    524;    Sherman    v.  222;   Bate  v.  Graham,  11  N.  Y.  207; 

Hogland.  1Z  Ind.  472.  Woerner  Am.  Law  Admin.,  §  296. 

'"Hess  V.   Hess,    19  Ind.  238;   Law  '"  Burtch  v.  EIHott,  3  Ind.  99;  Bank 

V.    Smith,  4  Ind.  56.  v.   Burke,  4  Blackf.    (Ind.)    141;  Ro- 

"  Johnson    v.    Jones,    79    Ind.    141;  chelle  v.  Harrison,  8  Port.  (Ala.)  351 ; 

Cox  V.  Hunter,  79  Ind.  590;  Love  v.  McLean  v.  Weeks,  61  Me.  277. 


21 6  INDIANA    PROBATE    LAW.  §    15I 

mortgaged  premises,  and  the  debt  secured  thereby,  shall  be  con- 
sidered as  personal  assets  in  the  hands  of  his  executor  or  admin- 
istrator, and  shall  be  administered  and  accounted  for  as  such,  and 
such  executor  or  administrator  shall  have  the  same  right  to  pos- 
session of  the  mortgaged  premises,  and  to  bring  any  suit  respect- 
ing the  same,  or  for  the  recovery  of  the  debt  secured  thereby,  and 
to  execute  or  carry  into  effect  any  act  or  power  contained  in  such 
mortgage,  or  in  the  provisions  of  any  law,  as  such  mortgagee  or 
assignee  could  if  he  were  alive.^'  Where,  in  any  such  case,  the 
mortgage  is  redeemed,  or  the  debt  secured  thereby  is  paid,  the 
money  shall  be  received  by  the  executor  or  administrator,  and  he 
shall  thereupon  release  and  discharge  the  mortgage.** 

If  the  mortgaged  premises  shall  have  been  taken  possession  of, 
under  the  mortgage,  by  the  executor  or  administrator,  or  by  the 
deceased,  the  executor  or  administrator  shall  hold  the  same  in 
trust  for  the  creditors,  heirs  or  other  persons  entitled  to  the 
money  upon  the  sale  or  redemption  of  the  premises. *° 

Deeds  of  trust  in  favor  of  a  decedent  would  likely  pass  under 
these  statutes  to  his  executor  or  administrator.*" 

If  land  of  a  decedent  has  been  sold  by  an  executor  or  adminis- 
trator, and  a  mortgage  from  the  purchaser  taken  to  secure  the 
purchase-money,  upon  a  foreclosure  of  such  mortgage,  and  a 
recover^'  of  the  land  thereunder,  the  land  so  recovered  does  not 
pass  to  the  heirs,  but  remains  as  assets  of  the  estate  in  the  hands 
of  the  executor  or  administrator.*^ 

Under  these  statutes  an  executor  or  administrator  is  the  proper 
party  to  enforce  the  mortgage  by  foreclosure  or  otherwise.  The 
power  to  assign  the  mortgage  is  also  his.** 

The  statute  above,  §  2782,  gives  executors  and  administrators 
authority  to  release  and  discharge  mortgages  when  the  debts 
secured  thereby  have  been  paid,  and  where  such  officer,  acting 

**  Burns'  R.  S.  1908.  §  2781.  ministrator.    Evans  v.  Enloe,  70  Wis. 

**  Burns'  R.  S.  1908,  §  2782.  345,  34  N.  W.  918,  36  N.  W.  22. 

*=  Burns'  R.  S.  1908,  §  2783.  '^  Burns'  R.   S.   1908,   §  2783;  Yon- 

*=  Williams  v.  Ely,  13  Wis.  1 ;  Clark  kers  Sav.  Bank  v.  Kingsley,  78  Hun 

V.  Blackington,  110  Mass.  369.   A  ven-  186,  28  N.  Y.  S.  925. 

dor's  lien  for  purchase  money  in  fa-  **  Gibson   v.   Bailey,   9   N.   H.    168; 

vor  of  the   decedent  goes  to  his  ad-  Crooker  v.  Jewell,  31  Me.  306. 


g    152  DISPOSITION    OF    PERSONAL    PROPERTY.  2.1  J 

under  this  statute,  has  made  the  proper  and  formal  release  of  a 
mortgage,  which  shows  that  the  debt  has  been  fully  paid  and 
satisfied,  and  such  instrument  duly  placed  of  record,  subsequent 
mortgagees  or  purchasers  have  a  right  to  rely  upon  such  record 
without  further  inquiry.*^ 

An  administrator  cannot  enter  a  release  and  satisfaction  of  a 
mortgage  when  it  has  not  been  paid.  Such  action  of  his  is  not 
binding  either  upon  the  heirs  or  creditors.®" 

§  152.  Same — Common-law  rule. — At  common  law  the 
mortgagee  was  entitled  to  the  immediate  possession  of  the  mort- 
gaged premises  unless  there  was  an  agreement  between  the  parties 
that  the  mortgagor  shall  remain  in  possession.  In  the  absence  of 
such  covenant  the  mortgagor  was  considered  as  holding  posses- 
sion by  the  sufferance  merely  of  the  mortgagee,  and  was,  there- 
fore, not  entitled  to  notice  before  ejectment  might  be  brought 
against  him,  and  such  action  might  be  maintained  by  the  execu- 
tor or  administrator  of  the  mortgagee  in  the  absence  or  non- 
residence  of  the  heirs."^  The  rule  in  this  state  has  been  reversed 
by  statute,  and  now,  unless  a  mortgage  specially  provides  that 
the  mortgagee  shall  have  possession  of  the  premises  mortgaged, 
he  shall  not  be  entitled  to  such  possession,®^  But  the  statute 
under  consideration  confers  a  wider  power  upon  executors  or 
administrators  of  mortgagees  in  relation  to  the  mortgaged  prem- 
ises than  was  theirs  at  common  law.  Under  this  statute  an 
executor  of  a  deceased  mortgagee  may  maintain  suit  upon  the 
notes  and  mortgages  given  to  his  testator,  although  they  may 
have  been  specifically  bequeathed.  Such  notes  and  mortgages 
are  part  of  the  personal  estate  of  the  testator,  and  as  such  belong 
to  his  executor  for  the  purposes  of  administration  and  distribu- 
tion. The  legatee  is  not  entitled  to  the  property,  and  has  no 
authority  to  take  possession  of  a  legacy  without  the  assent  of  the 
executor,  although  the  testator,  in  his  will,  expressly  direct  that 
he  shall  do  so.    The  reason  for  this  is  that  if  it  were  permitted,  a 

'"  Connecticut  &c.  Ins.  Co.  v.  Talbot,        *°  Talbott  v.  Dennis,  1  Ind.  471. 
113  Ind.  nZ,  14  N.  E.  586,  3  Am.  St.        *^Doe  v.  Mace,  7  Blackf.   (Ind.)  2. 
655.  •^Burns' R.  S.  1908,  §  1133. 


2l8  INDIANA    PROBATE    LAW. 


153 


testator  might  thus  bequeath  all  his  effects  in  fraud  of  his  cred- 
itors."^ An  administrator  may,  on  behalf  of  the  estate,  redeem 
from  sheriff's  sale  land  which  has  been  sold  on  a  judgment  which 
is  prior  to  a  mortgage  upon  the  same  lands,  owned  and  held  by 
his  decedent. °* 

§  153.  Contracts  in  consideration  of  marriage. — A  prom- 
ise of  marriage  will  support  a  grant,  or  the  transfer  of  personal 
property;  it  is  regarded  as  a  valuable  consideration.  It  is  said 
that  "marriage  is  regarded  as  one  of  the  strongest  considerations 
in  law,  either  to  raise  a  use  or  to  found  a  contract,  gift,  or 
grant."""  For  this  reason  contracts  transferring  property,  or  re- 
leasing or  waiving  rights  in  property,  in  consideration  of  mar- 
riage are  favored  in  law,  and  are  placed  on  an  equal  footing  with 
those  supported  by  an  adequate  consideration  in  money."*' 

This  is  more  particularly  true  of  what  are  known  as  ante- 
nuptial contracts.  The  rule  as  to  post-nuptial  contracts  is  not  so 
liberal.  But  even  post-nuptial  settlements  are  valid  and  binding 
as  to  the  parties  and  those  who  claim  under  or  through  them,  and 
in  the  absence  of  fraud  will  be  good  even  as  against  creditors."' 
They  will,  however,  be  deemed  fraudulent  if  the  debts  of  the 
party  making  the  settlement  were  considerable  at  the  time  of 
making  the  settlement,  and  the  rights  of  creditors  thereby  de- 
feated,"* it  being  the  rule  that  a  conveyance,  transfer,  or  gift, 
from  a  husband  to  his  wife  without  consideration  is  void  as 
against  existing  creditors  though  no  fraud  was  actually  in- 
tended."" But,  in  general,  debts  subsequently  incurred  will  not 
defeat  a  post-nuptial   settlement,   nor  will   the  presumption   of 

''Crist    V.    Crist,     1    Ind.    570,    SO  Gray,  36  Miss.  510;  Gardner  v.  Baker, 

Am.  Dec.  481n.  25   Iowa  343;    Clayton  v.    Brown,   30 

°*  Mitchell  V.   Hodges,  87   lad.  491.  Ga.  490. 

"*  Parsons  on  Contracts,  554.  "'Reynolds    v.    Lansford,    16    Tex. 

°*Bunnel  v.  Witherow,  29  Ind.  123.  286;  Borst  v.  Corey,  16  Barb.  (N.  Y.) 

"'Barker    v.    Koneman,    13    Cal.   9;  136;   Belford  v.   Crane.    16  N.  J.   Eq. 

Brackett  v.   Waite,  4  Vt.   389;    Sims  265,  84  Am.  Dec.  155;  Filley  v.  Regis- 

V.   Rickets,  35   Ind.   181,  9  Am.   Rep.  ter,  4  Minn.  391,  11  Am.  Dec.  522. 

679;   Moore  v.   Page,   111  U.  S.   117,  ''' Robinson   v.    Clark,   16   Me.   493; 

28  L.  ed.  Ill,  4   Sup.   Ct.  388;   Ber-  Watson  v.   Riskamire,  45   Iowa  231; 

trand  v.  Elder,  23  Ark.  494;  Wiley  v.  Woodson  v.  Pool,  19  Mo.  340. 


S    154  DISPOSITION    OF    PERSONAL    PROPERTY.  219 

fraud  arise  if  the  debts  were  inconsiderable,  and  even  if  consid- 
■erable  if  the  debtor  had  other  means  with  which  to  pay  them/ 

Persons  contemplating  marriage  may  enter  into  contracts  by 
which  each  surrenders  all  claims  upon  the  property  of  the  other 
after  death;  or  such  ante-nuptial  agreements  may  specify  par- 
ticularly the  property  each  shall  take  from  the  estate  of  the  other 
after  death,  and  where  this  is  done  the  executor  or  administrator 
of  either  need  not  charge  himself  with  the  property  affected  or 
transferred  by  such  ante-nuptial  settlement.^  The  widow's  allow- 
ance of  five  hundred  dollars  may  be  released  by  such  contract.^ 
But  it  will  not  bar  her  from  claiming  a  bequest  made  to  her  in 
her  husband's  will;*  nor  is  the  liability  of  the  husband  for  neces- 
saries for  his  wife  affected  by  such  a  contract.^  An  ante-nuptial 
contract  which  determines  the  rights  of  a  husband  and  wife  in 
the  property  of  each  other  is  not  to  be  construed  as  a  settlement 
or  jointure  within  the  meaning  of  the  statute,  §§  3038  and  3039, 
1908.'' 

§  154.  Title  to  and  power  over  personal  property. — After 
an  executor  or  administrator  has  been  appointed  and  qualified, 
the  title  and  possessory  rights  in,  and  to,  the  personal  property 
and  choses  in  action  of  his  decedent  pass  to  and  vest  in  such 
executor  or  administrator.'^ 

At  common  law  an  executor  or  administrator  had  the  same 
property  in,  and  the  same  powers  over,  the  personal  estate  of  the 
decedent,  that  such  decedent  had  at  and  before  his  death.     Lord 

'  Brookbank    v.    Kennard,    41    Ind.  ^  Buffington  v.   Buffington,   151   Ind. 

339;   Gridley  v.  Watson,  53  111.   186;  200,  51  N.  E.  328. 

Stephenson  v.  Donahue,  40  Ohio  St.  '  Blake  v.  Blake,  15  Ind.  App.  492, 

184;    Lloyd   v.   Fulton,  91   U.   S.  479,  44  N.  E.  488. 

23  L.  ed.  363.  '  Scott   v.   Carothers,    17   Ind.   App. 

'  Houghton    V.    Houghton,    14    Ind.  673,  47  N.  E.  389. 

505,  77  Am.  Dec.  69 ;  McNutt  v.  Mc-  '  Kennedy  v.  Kennedy,  150  Ind.  636, 

Nutt,   116  Ind.   545,   19  N.   E.   115,  2  50  N  .E.  756;  Repp  v.  Lesher,  27  Ind. 

L.   R.   A.  372n ;   Leach  v.  Rains,    149  App.  360,  61  N.  E.  609. 

Ind.    152,  48  N.   E.  858;   Kennedy  v.  'Smith    v.    Ferguson.    90   Ind.   229, 

Kennedy,  150  Ind.  636,  50  N.  E.  756;  46  Am.  Rep.  216;  Walpole  v.  Bishop, 

Moore  v.  Harrison,  26  Ind,  App.  408,  31  Ind.  156. 
59   N.    E.    1077;   Woerner   Am.   Law 
Admin.,  §  287. 


220  INDIANA    PROBATE    LAW.  §154- 

Mansfield  laid  down  the  following  as  the  rule:  "The  general 
rule  both  of  law  and  equity  is  clear,  that  an  executor  may  dispose 
of  the  assets  of  the  testator;  that  over  them  he  has  absolute 
power,  and  that  they  cannot  be  followed  by  the  testator's  cred- 
itors."^ And  the  law  is  that  an  administrator  has  the  same  prop- 
erty in,  and  the  same  powers  over,  the  personal  estate  of  his 
decedent,  as  an  executor,  because,  after  administration  has  been 
granted,  the  power  of  an  administrator  is  equal  to,  and  with,  the 
power  of  an  executor."  The  common  law,  where  not  inconsistent 
with  the  constitution  and  statutes  of  this  state,  or  of  those  of  the 
United  States,  has  always  been  the  law  of  this  state,  and  is  yet 
where  not  abrogated  or  changed  by  legislative  enactment. 
Whether  an  administrator  or  executor  has  the  same  absolute 
power  over  the  personal  property  of  his  decedent  in  this  state  as 
at  common  law  is  a  question  which,  from  the  decisions  of  the 
Supreme  Court,  appears  yet  somewhat  in  doubt.  The  court  has, 
however,  shown  some  disposition  to  limit  or  restrain  the  power 
of  executors  or  administrators  over  the  personal  property  of  the 
decedent.^" 

The  law  does  not  enlarge  the  rights  of  an  administrator  be- 
yond the  rights  of  the  deceased  if  he  were  alive,  but  the  adminis- 
trator stands  as  the  representative  of  the  deceased,  in  his  place 
and  in  his  stead,  with  no  greater  or  no  less  power." 

In  the  case  of  Weyer  v.  Second  Nat.  Bank,  57  Ind.  198,  on 
page  206,  the  court  says:  "It  is  clear  to  our  minds,  that  our 
statute  providing  for  the  settlement  of  decedents'  estates,  and  our 
statute  regulating  descents,  are  both  repugnant  to  and  inconsist- 
ent with  the  common-law  doctrine  of  the  absolute  property  of  an 
executor  or  administrator  in,  or  of  his  absolute  power  over,  the 
personal  effects  or  estate  of  his  decedent.  Where  this  repug- 
nancy or  inconsistency  exists,  of  course  the  statute  must  prevail 

'  Whale    V.    Booth,    4    T.    R.    625,  "  Hatfield  v.  Mahoney,  39  Ind.  App. 

note  a.  499,  79  N.  E.  408,  1086;  Owen  Creek 

'  Williams  Exrs.,  6  Am.  Ed.,  p.  992.  Presby.    Church  v.   Taggart,   44   Ind. 

^"Fleece  v.  Jones,  71  Ind.  340;  Rog-  App.  393,  89  N.  E.  406. 
ers  V.  Zook,  86  Ind.  237 ;  Thomasson 
V.  Brown,  43  Ind.  203. 


-g    155  DISPOSITION    OF    PERSONAL    PROPERTY.  221 

and  constitute  the  law.  Here,  the  personal  property  of  a  de- 
cedent is  the  property  of  such  decedent's  estate,  and,  at  most,  his 
executor  or  administrator  has  but  a  quahfied  power  over  such 
property.  He  may  sell  such  personal  property  it  is  true,  but  he 
must  sell  the  same  at  public  auction,  and  cannot  sell  it  otherwise, 
unless,  upon  application  to  the  proper  court,  he  obtains  an  order 
authorizing  a  private  sale.  His  position  or  office  of  executor  or 
administrator  confers  on  him  no  other  power  or  authority  over 
his  decedent's  estate  than  the  law,  under  which  he  holds  his  office 
or  position,  confers.  And,  if  further  power  or  authority  over 
said  estate  is  desired  or  necessary  for  any  purpose,  such  executor 
or  administrator  can  only  obtain  the  same  by  an  order  of  the 
court  by  which  he  was  appointed,  in  a  proper  case,  to  be  shown 
by  his  verified  petition,  and  other  proof  if  required.  So  the  law 
is  and  has  been  written  in  this  state  for  more  than  thirty  years 
past ;  and  so,  we  think,  it  ought  to  be  construed  in  the  interest  of 
every  citizen  and  of  those  who  are  to  come  after  him.  The 
estates  of  the  dead  are  a  trust  to  the  courts,  and  every  legal  safe- 
guard to  their  proper  administration  ought  to  be  faithfully  sus- 
tained." 

§  155.  Same — As  to  promissory  notes,  debts,  etc. — As  to 
negotiable  instruments  belonging  to  the  decedent  and  debts  due 
and  owing  to  him,  the  rule  is,  as  to  this  species  of  property,  that 
the  power  of  an  executor  or  administrator  is  little  changed  from 
what  it  was  at  common  law.  In  the  case  of  Latta  v.  Miller,  109 
Ind.  302,  10  N.  E.  100,  the  court  says:  "The  common-law  rights 
and  powers  of  an  executor  or  administrator  over  promissory 
notes,  bills  of  exchange,  or  other  evidences  of  debt,  belonging  to 
the  decedent's  estate,  so  far  as  we  are  advised,  have  never  been 
changed  or  restricted  even  by  statute  in  this  state,  but  have  often 
been  recognized  in  the  decisions  of  this  court."  The  court  in  this 
case  goes  further  and  says  that  "the  only  restraint  upon  the  com- 
mon-law rights  and  powers  of  an  executor  or  administrator,  in  or 
over  promissory  notes  and  other  evidences  of  debt,  belonging  to 
the  decedent's  estate,  is  imposed  not  by  statute  in  this  state,  but  by 
the  decisions  of  this  court."    In  another  case,  this  court  says: 


2.22  INDIANA    PROBATE    LAW.  §    1 56 

"The  executor  has  in  this  state  a  general,  and  in  many  respects 
an  absohite,  power  over  the  debts  due  the  estate  of  his  testator. 
When  done  without  fraud  or  collusion  he  may  assign  or  release 
such  debts  and  may  exercise  general  acts  of  ownership  over  them, 
in  regard  to  their  security  or  collection,  subject  only  to  his  lia- 
bility on  his  bond  for  any  loss  which  may  occur  by  reason  of  his 
mismanagement  of  such  debts.'"-  And  it  has  often  been  held 
that  an  executor  or  administrator  may  transfer,  by  his  indorse- 
ment, promissory  notes  payable  to  his  decedent,  so  as  to  vest  the 
absolute  title  thereto  in  his  assignee. ^^ 

While  these  decisions  draw  a  line  of  distinction  between  the 
two  classes  of  a  decedent's  personal  property,  and  in  one  class 
limit  the  power  of  an  executor  or  administrator  as  to  its  control 
and  disposition,  while  in  the  other  class  his  power  remains  as 
general  and  absolute  almost  as  at  common  law,  it  is  difficult  to 
perceive  why  the  rule  of  limitation  should  not  be  applied  to  both 
classes  alike.  Just  why  an  executor  or  administrator  should  have 
absolute  power  under  proper  circumstances,  to  assign,  sell,  trans- 
fer, or  extend  the  time  for  payment  of  promissory  notes,  bills 
of  exchange,  or  other  evidences  of  debt  due  to  the  decedent,  and 
should  not  have  such  power  as  to  other  personal  property  of  the 
estate,  is  a  point  not  made  clear  by  the  court's  decisions. 

The  administrator  represents  the  person  of  his  intestate  in  re- 
spect to  his  personal  estate,  all  of  which,  as  a  rule,  vests  in  the 
administrator  on  the  grant  of  letters  of  administration.  The  in- 
terest, however,  which  the  administrator  has  in  such  personal 
estate,  is  only  temporary  and  qualified. 

§  156.  Same — Right  to  sue. — It  is  the  general  doctrine  of 
the  law  in  this  state  that  the  executor  or  administrator  of  a  de- 
cedent can  alone  sue  for  and  recover  the  personal  property  owned 
by  such  decedent  at  the  time  of  his  death.'*    There  is,  however,, 

''  Underwood    v.    Sample,    70    Ind.     v.  Zook,  86  Ind.  211 ;  Ditmar  v.  West, 
'^-^6■_  7  Ind.  App.  637,  35  N.  E.  47. 

'"  Douglass  V.  McCarer,  80  Ind.  91 ; 
Pond  V.  Sweetser,  85  Ind.  144;  Finne- 
gan  V.  Finnegan,  125  Ind.  262,  25  N. 


■Thomas  v.  Reister,  3  Ind.  369 
Hamrick  v.  Craven,  39  Ind.  241 
Thomasson    v.    Brown,    43    Ind.    203 


Krutz  V.  Stewart,  76  Ind.  9;   Rogers     E.  341 


§    156  DISPOSITION    OF    PERSONAL    PROPERTY.  223 

one  exception  to  this  rule,  viz. :  Where  an  intestate  dies,  leaving 
no  debts  to  be  paid,  and  no  administration  is  had  upon  his  estate, 
his  heirs  at  law  may  sue  for  a  debt  owing  to  such  decedent  at  the 
time  of  his  death/^  Where  the  heirs  of  a  creditor  sue  for  the 
debt  the  complaint  should  aver  every  fact  necessary  to  give  them 
a  right  of  action  and  to  recover  the  money.  It  is  not  sufficient  to 
show  that  there  are  no  debts  to  be  paid.  The  complaint  must 
show  by  its  averments  that  the  heirs  suing  are  entitled  to  the 
money.  For  this  reason  it  is  necessary  to  aver  the  non-existence 
of  debts.  It  must  also  aver  that  no  administration  had  been 
granted  upon  the  estate,  and  that  no  widow  of  the  decedent  was 
left  to  claim  any  portion  of  the  estate,  or  that  she  had  received 
or  relinquished  the  amount  due  her  under  the  law.  It  is  essential 
to  allege  all  these  facts  to  give  the  heirs  the  right  of  action ;  and 
on  the  trial  they  must  all  be  proven  to  authorize  a  recovery.^" 

From  the  granting  of  letters  to  the  executor  or  administrator 
the  personal  property  and  choses  in  action  of  the  deceased  are  in 
a  sense  in  the  custody  of  the  law  and  subject  to  the  orders  and 

"Ferguson  v.  Barnes,  58  Ind.  169;  hand,  it  is  contended  by  the  appellee 

Finnegan  v.   Finnegan,    125   Ind.  262,  that  it  is  sufficient  to  allege  that  Pat- 

25  N.  E.  341 ;   Schneider  v.   Piessner,  rick  Finnegan   died   intestate,  leaving 

54  Ind.  524.  no    widow,    and    that    the    debts    due 

"  Schneider  v.  Piessner,  54  Ind.  524 ;  from    his    estate    at    the    time    of   his 

Finnegan  v.   Finnegan,    125   Ind.  262,  death  have  all  been  paid.    An  exam- 

25    N.    E.   341;    Moore   v.    Board,    59  ination    of    the    adjudicated    cases    in 

Ind.   516;   Williams  v.   Williams,   125  this    state  will   disclose  the  fact  that 

Ind.    156,  25   N.   E.    176;   Westerfield  no  complaint  of  the  class  now  under 

V.    Spencer,    61    Ind.    339;    Begien    v.  consideration  has  ever  been  held  suf- 

Freeman,     75     Ind.     398;     Waltz     v.  ficient  without  an   allegation  that  no 

Waltz,  84  Ind.  403 ;  Williams  v.  Riley,  letters    of    administration    had    been 

88  Ind.  290;  State  v.  Sanders,  90  Ind.  granted    upon   the    estate    of   the    de- 

421 ;    Humphries    v.    Davis,    100    Ind.  ceased."     Stebbins   v.    Goldthwait,   31 

369.      In    Finnegan   v.   Finnegan,    125  Ind.  159 ;  ]^Iitchell  v.  Dickson,  53  Ind. 

Ind.  262,  25  N.  E.  341,  the  court  says :  110;    Martin    v.    Reed,    30    Ind.    218; 

"It    is    contended    by    the    appellant  Bearss  v.  Montgomery,  46  Ind.   544; 

that  the  complaint  is  radically  defect-  Ferguson  v.  Barnes,  58  Ind.  169.    In 

ive,  in  that  it  fails  to  allege  that  no  such  an  action  by  the  heirs  the  com- 

letters    of    administration    have    been  plaint   must   allege   every   fact  neces- 

granted  on  the  estate  of  Patrick  Fin-  sary  to  give  a  right  of  action  to  re- 

negan,   deceased,   to  whom   the  notes  cover  the  debt  for  which  the  action 

in  suit  were  executed.    On  the  other  is  prosecuted. 


224  INDIANA    PROBATE    LAW.  §    1 57 

control  of  the  court.  To  pennit  the  heirs  to  prosecute  actions  for 
the  recovery  of  debts  due  to  the  ancestor  while  there  was  an  act- 
ing executor  or  administrator  would  result  in  the  utmost  confu- 
sion. Persons  indebted  to  the  estate  would  be  at  a  loss  to  know 
who  was  entitled  to  receive  and  receipt  for  the  money  due  the 
estate,  and  the  court  would,  in  many  cases,  experience  much 
difficulty  in  ordering  a  proper  distribution,  the  amount  due  to 
each  heir  depending  upon  the  amount  collected  by  those  entitled 
to  the  estate.^' 

Executors  and  administrators  hold  the  property  of  the  estate 
in  trust  for  the  creditors  and  others  interested  therein,^^  and 
until  the  debts  of  the  estate  are  all  paid  the  executor  or  adminis- 
trator has  a  claim  to  the  assets  of  such  estate  superior  to  that  of 
the  heirs  ;^^  but  the  rights  of  such  executor  or  administrator  are 
not  greater  than  were  those  of  his  decedent  while  living,  and 
property  that  such  decedent  could  not  have  claimed  in  his  life- 
time cannot  be  recovered  by  his  executor  or  administrator.-" 

§  157.  The  inventory  and  appraisement. — The  making  of 
a  correct  inventory  and  a  proper  appraisement  of  all  the  personal 
assets  of  his  decedent  is  one  of  the  first  and  most  important 
duties  imposed  by  law  upon  an  executor  or  administrator.  This 
duty  is  imposed  by  statute  in  every  state,  and  a  failure  to  perform 
it  constitutes  a  breach  of  the  administration  bond.  When  the 
settlement  of  estates  was  within  the  jurisdiction  of  the  ecclesi- 
astical courts,  the  ancient  law  was  very  strict  with  respect  to  the 
making  of  inventories.-^ 

An  executor  or  administrator  can  be  required  to  inventory 

"  Finnegan    v.    Finnegan,    125    Ind.  make  an  inventory,  and  nevertheless 

262,  25  N.  E.  341.  presume  to  administer   the   goods   of 

"  Judah     V.     Brandon,     5     Blackf.  the  deceased,  he  may  be  punished  at 

(Ind.)   506;  Barton  v.  Bryant,  2  Ind.  the  discretion  of  the  bishop  or  ordi- 

189;    North    Western    Conference    v.  nary.    The  reason  is,   lest  the  execu- 

]\Iyers,  36  Ind.  375.  tor    being    disposed    to    deal    unfaith- 

'°  Bearss    v.    Montgomery,    46    Ind.  fully,  should  defraud  the  creditors  or 

544;  Hamrick  v.  Craven,  39  Ind.  241;  legataries,  by  concealing  the  goods  of 

Coquillard  v.  French,  19  Ind.  274.  the    deceased."    Swinburne   on   Wills, 

="  Garner  v.  Graves,  54  Ind.  188.  pt.  6,  §  6. 

"^  "And   if   any   executor   refuse   to 


8    157  DISPOSITION    OF    PERSONAL    PROPERTY.  225 

only  the  property  which  belonged  to  the  decedent  at  the  time  of 
his  death,  in  his  own  right,  or  to  which  the  executor  or  adminis- 
trator is  entitled  in  his  official  capacity.  He  cannot  be  compelled 
to  inventory  property  not  clearly  belonging  to  the  estate.  Nor  is 
he  to  be  the  sole  judge  of  what  shall  be  inventoried,  it  being  held 
that  the  ultimate  determination  must  rest  with  the  court.  If  an 
executor  or  administrator  should  refuse  to  inventory  any  prop- 
erty the  court  would  be  powerless  to  administer  on  the  estate 
unless  it  had  power  to  compel  an  inventory.  No  inventor)^,  of 
course,  can  be  made  where  no  property  comes  to  the  knowledge 
of  the  executor  or  administrator,  but  he  should  nevertheless  file 
some  kind  of  showing  in  lieu  of  inventory  for  the  information  of 
the  court  and  interested  parties. " 

The  chief  purpose  of  making  and  filing  an  inventory  is  to  in- 
form the  court  having  jurisdiction  of  the  estate,  and  all  persons 
interested  therein,  just  what  property  belongs  to  such  estate,  and 
it  also  furnishes  a  basis  from  which  to  estimate  the  liability  of  an 
administrator  or  executor. ^^ 

While  it  is  the  duty  of  an  executor  or  administrator  to  in- 
ventory all  the  personal  property  of  his  decedent  which  comes  to 
his  knowledge,  whether  such  property  is  in  his  possession  or  in 
the  possession  of  another,  and  also  to  inventory  all  property 
claimed  by  another  which  is  found  among  the  assets  of  the  estate, 
which  does  not  clearly  appear  to  belong  to  the  deceased,  yet 
if  property  so  claimed  is  clearly  distinguishable  from  the  mass  of 
the  property  of  the  estate  it  need  not  be  inventoried.^* 

Nor  can  he  be  compelled  to  inventoi*y  property  which  he  knows 
to  belong  to  another,  although  such  property  may  have  come  to 
his  hands  as  administrator  with  other  assets  of  the  estate.^^ 

^  In  such  case  a  failure  to  make  an  ^  Moore  v.  Holmes,  32  Conn.  553. 

inventory  constitutes  no  breach  of  the  ^  Rowley  v.  Fair,   104  Ind.   189,  3 

bond.    Toledo  &c.   R.  Co.  v.  Reeves,  N.  E.  860;  Prescott  v.  Ward,  10  Al- 

8  Ind.  App.  667,  35  N.  E.  199;  Hall  len    (Mass.)    203;    McNeel's    Estate, 

v.   Bramble,  2  Dak.    189;   Walker  v.  68  Pa.  St.  412;  Bourne  v.  Stevenson, 

Hall,   1   Pick.    (Mass.)   20;   Simms  v.  58  Me.  499. 

Guess,  52  111.  App.  543 ;  Snodgrass  v.  ^  Snodgrass   v.   Andrews.   30  Miss. 

Andrews,  30  Miss.  472,  64  Am.  Dec.  472,  64  Am.  Dec.  169. 
169;     Woerner     Am.     Law     Admin., 
§  317. 

15— Pro.  Law. 


226  INDIANA    PROBATE    LAW.  §    1 58 

§  158.  Inventory,  statutory  requirements. — Every  execu- 
tor or  administrator,  within  sixty  days  after  his  appointment, 
shall  make  out  a  true  and  complete  inventory  of  the  personal 
estate  of  the  decedent  which  shall  have  come  to  his  knowledge, 
including  all  debts,  demands,  stocks,  moneys  and  goods  due  to 
and  owned  by  the  decedent  at  his  death,  and  all  emblements  and 
annual  crops  raised  by  labor,  whether  severed  from  the  land  or 
not  at  the  time  of  his  death.  The  inventory  shall  be  made  out  in 
two  parts,  as  follows :  The  debts,  demands,  stocks  and  moneys 
shall  be  inventoried  separately  from  the  goods  of  the  deceased. 
The  inventor}^  thereof  shall  be  on  printed  blanks,  furnished  as 
hereinafter  provided,  and  shall,  as  far  as  practicable,  exhibit  in 
the  appropriate  columns,  under  the  proper  headings,  the  number 
of  the  debt  or  other  item,  name  of  the  debtor,  kind  of  claim, 
principal  sum,  date  thereof,  rate  and  commencement  of  interest, 
dates  and  amounts  of  credits,  and  appraised  value.  When  the 
amount  due  upon  the  claim  rests  in  computation,  the  amount  due 
on  the  claim  as  inventoried  shall  be  taken  as  the  appraised  value. 
If  the  claim  is  for  unliquidated  damages,  or  based  upon  a  con- 
tract obligating  the  person  executing  the  same  to  the  performance 
of  anything  other  than  the  payment  of  money,  it  shall  be  ap- 
praised at  its  fair  cash  value,  and  so  noted  in  the  inventory. 
The  claims  and  items  so  inventoried,  as  aforesaid,  shall  be  num- 
bered in  the  margin  of  the  inventory  from  one  upward,  progres- 
sively. The  goods,  emblements  and  annual  crops  of  the  decedent 
shall  be  inventoried  in  detail  upon  printed  blanks  furnished  for 
that  purpose,  as  aforesaid.  Such  inventory  shall  contain  printed 
headings  for  the  number,  kind  and  quantity  of  goods,  and  ap- 
praised value,  and  the  items  shall  be  numbered  from  one  upward, 
progressively.-*'   And  when  real  estate  is  devised  to  executors,  or 

^  Burns'  R.  S.  1908,  §  2777.  posed  by  this  statute  is  not  one  to  be 

It  is  said  "the  great  object  of  this  dispensed   with  by  the  terms   of  the 

highly   important   requirement   of  the  will.     Potter    v.    McAlpine,    3    Dem. 

law  regarding  an  inventory,  is  to  en-  (N.   Y.)    108.    The   failure  to  file  an 

able  the  judge  of  probate  and  the  par-  inventory,  while  it  is  a  breach  of  the 

ties  in   interest  to   know  what   prop-  bond,  yet  it  does  not  render  adminis- 

erty  belongs  to  the  estate."    Moore  v.  tration   void.     Cooper  v.    Horner,   62 

Holmes,  32  Conn.  553.    The  duty  im-  Texas  356;  Phelan  v.  Smith,  100  Cal. 


§158  DISPOSITION    OF    PERSONAL    PROPERTY.  22/ 

directed  by  the  will  to  be  sold  for  the  payment  of  debts  or  lega- 
cies, the  same  shall  be  included  in  the  inventory,  and  appraised  at 
its  trne  value  by  the  appraisers. ^^ 

The  statute  requires  the  property  inventoried  to  be  itemized, 
and  when  not  so  done  the  inventory  should  be  rejected.  If,  in 
making  an  inventory,  an  item  should  be  inserted  by  mistake  it 
may  be  stricken  out. 

As  a  general  rule,  the  real  estate  of  a  decedent  need  not  be  in- 
ventoried and  appraised.  The  exception  is  found  in  the  above 
statute.  An  inventoiy  which  has  been  taken  for  the  purpose  of 
discovering  whether  or  not  an  estate  exceeds  five  hundred  dollars 
in  value,  with  intention  to  avoid  an  administration  thereon,  does 
not  dispense  with  the  inventory  required  by  this  statute  if  an 
administrator  should  be  appointed  for  the  estate.-^  A  failure  to 
make  out  and  return  proper  inventories  is  good  cause  for  the  re- 
moval of  an  executor  or  administrator.^^  And  the  return  of  a 
false  inventory  will  be  such  fraud  as  to  furnish  good  grounds  for 
setting  aside  the  final  settlement  of  an  executor  or  administrator 
guilty  of  the  fraud. ^° 

158,  34  Pac.  667;  Bourne  v.  Steven-  35  IMiss.  696,  72  Am.  Dec.  153;  Wil- 
son, 58  Me.  499.    The  presumption  is  Hams  v.  Mower,  29  S.  Car.  332,  7  S. 
that  the  inventory  contains  all  of  the  E.  505.    And  an  item  inserted  by  mis- 
property  of  the  estate,  and  the  wilful  take    may    be    stricken    out.     In    re 
omission  of  anything  therefrom   is   a  Payne,  78  Hun  292,  28  N.  Y.  S.  911. 
fraud.     McNeel's   Estate,   68   Pa.    St.  The  following  note  from  Woerner's 
412;   In  re  Mullon,  74  Hun  358,  26  Am.  Law  Admin.,  page  704,  is  inter- 
N.  Y.  S.  683;  Ini  re  Palmer,  3  Dem.  esting  as  showing  the  need  of  a  de- 
(N.  Y.)   129.  tailed    inventory:      "Such    items    as, 
="  Bums'  R.  S.  1908,  §  2780.  'cash,    bonds,    notes,    etc.,   $13,993.06,' 
^  Pace  V.  Oppenheim,  12  Ind.  533.  'household   goods  and  kitchen   furni- 
=»  Burns'  R.  S.  1908,  §  2762.  ture,     $298.00,'     'horses,     cows,     and 
The  failure  of  an  administrator  to  swine,  $268.00,'  do  not,  strictly  speak- 
make    an   inventory    of    a    claim    due  ing,     constitute     an     inventory,     but 
from  him  to  the  estate  is  not  material  rather  an  abstract  or  compendmm  of 
to  the  liability  of  his  sureties,  unless  one.     'Surrogates  would  do  nght^  to 
actual     damage     resulted     therefrom,  reject     such    papers     as     inventories. 
State  V.  Gregory,  119  Ind.  503,  22  N.  They  often  work  injury  to  creditors 
£    I  and   legatees,   and  sometimes   involve 
"'•West  V.  Reavis,  13  Ind.  294.    The  executors  and  administrators  in  seri- 
inventory  concludes  no  one.    Mistakes  ous  difficulty.    In  fact,  it  is  impossible 
may  be  shown  therein.  Lewis  v.  Lusk,  to   settle  any  estate  with  intelligence 


228 


INDIANA    PROBATE   LAW. 


§    159 


§  159.  What  the  inventory  should  include. — The  inven- 
tory shall  include  all  the  personal  property  of  the  decedent, 
whether  such  property  was  in  the  possession  of  the  decedent  at 
his  death  or  in  the  possession  of  another.  ^^  But  property  belong- 
ing to  another  in  the  possession  of  the  decedent  clearly  distin- 
guishable from  the  property  of  the  estate  need  not  be  inven- 
toried.^- 

All  property  coming  to  the  knowledge  of  the  executor  or  ad- 
ministrator which  he  has  good  reason  to  believe  belongs  to  the 
estate  of  the  decedent  should  be  inventoried,  even  his  own  in- 
debtedness to  the  estate. ^^  A  leasehold  for  a  less  term  than  life 
is  personal  property  and  should  be  included  in  the  inventory.^* 
So  also  all  animals  wild  bv  nature  which  are  so  confined  as  to  be 


and  accuracy  without  other  aids  than 
they  furnish' :  Vanmeter  v.  Jones,  3 
N.  J.  Eq.  520,  558.  A  more  emphatic  il- 
lustration of  the  necessity  of  accurate 
and  detailed  inventories  is  found  in 
Pursel  V.  Pursel,  14  N.  J.  Eq.  514. 
'The  whole  difficulty',  says  the  ordi- 
nary, in  delivering  the  opinion  of  the 
prerogative  court,  'has  grown  out  of 
the  defective  character  of  the  inven- 
tory, and  exhibits  in  a  striking  point 
of  view  the  impropriety  of  suffering 
such  inventories  to  be  filed.  *  *  * 
They  do  not  answer  the  design  of  the 
law.  They  fail  to  furnish  to  parties 
the  very  information  which  they  were 
•designed  to  supply.  They  often  lead, 
as  in  this  case,  to  useless  litigation, 
imperil  the  rights  of  parties,  impose 
upon  courts  the  painful  duty  of  grop- 
ing for  the  truth  in  the  dark,  or  of  de- 
ciding by  uncertain  and  unreliable 
tests  of  truth.  The  court  below  were 
misled  entirely  by  the  defects  and  vir- 
tual misrepresentations  of  the  inven- 
tory, and  this  court  was  saved  from 
falling  into  the  same  error  mainly  by 
exhibits  offered  on  the  part  of  the  ex- 
ceptant. In  this  case,  it  is  true,  the 
loss  of  the  mistake  would  have  fallen 


where  it  justly  belonged,  on  the  head 
of  the  party  guilty  of  the  negligence 
that  occasioned  it.  But  it  falls,  it  is 
to  be  feared,  too  often  upon  unsus- 
pecting heirs  and  confiding  relatives 
who  are  made  the  victims  of  the  care- 
lessness or  fraud  which  covers  up  the 
real  truth  under  the  shelter  of  general 
and  unintelligible  inventories.  *  *  *  I 
feel  it  my  duty  to  protest  earnestly 
against  the  practice,  not  only  from  the 
embarrassment  it  has  occasioned  in 
this  particular  case,  but  because  I  re- 
gard it  as  a  fruitful  source  of  litiga- 
tion, and  as  opening  a  wide  door  to 
fraud  and  injustice.  Justice  requires 
that  in  all  cases  the  requirements  of 
the  statute  should  be  strictly  complied 
with.' " 

^  Pursel  V.  Pursel,  14  N.  J.  Eq.  514; 
McNeel's  Estate,  68  Pa.  St.  412; 
Bourne  v.  Stevenson,  58  Me.  499. 

"Prescott  v.  Ward,  10  Allen 
(Mass.)  203;  Trecothick  v.  Austin,  4 
Mason  (U.  S.)   16. 

^  State  V.  Gregory,  119  Ind.  503,  22 
N.  E.  1;  Sherman  v.  Page,  85  N.  Y. 
123;  Weems  v.  Bryan,  21  Ala.  302. 

"  McCarty  v.  Burnet,  84  Ind.  23. 


§    159  DISPOSITION    OF    PERSONAL    PROPERTY.  229 

in  the  immediate  possession  of  the  decedent,  as  tame  pigeons, 
doves  in  a  dove-cote,  deer,  rabbits,  pheasants,  partridges,  ani- 
mals kept  in  a  room  or  cage,  fish  in  a  box,  tank,  or  net  ;^'  but  if 
such  animals  are  roaming  at  v^ill  in  a  park,  not  tamed  or  re- 
claimed from  their  wild  state,  or  fish  in  a  pond,  they  do  not  belong 
to  the  administrator.'" 

The  administrator  should  inventory  all  the  property  he  may 
find  among  the  eflfects  of  the  decedent  if  he  does  not  know  such 
property  to  belong  to  another,  and  if  property  belonging  to  an- 
other is  so  inventoried  and  sold  in  good  faith,  the  true  owner 
cannot  reclaim  it,  but  must  seek  his  remedy  by  a  claim  against 
the  estate." 

All  personal  property  of  every  description  belonging  to  a  de- 
cedent's estate  must  be  inventoried  by  his  executor  or  adminis- 
trator, but  such  executor  or  administrator  cannot  be  charged  with 
neglect  for  a  failure  to  inventory  property  of  the  estate  which 
never  came  to  his  knowledge.''  The  debt  of  an  administrator  to 
his  decedent  is  to  be  accounted  for  as  other  debts  or  assets  of  the 
estate,  and  the  failure  of  the  administrator  to  make  an  inventory 
of  such  claim  due  from  him  to  the  estate  is  not  material  to  the 
liability  of  his  sureties  unless  actual  damage  followed  because  of 
such  failure.^^ 

All  leasehold  estates  of  realty  should  be  inventoried,  as  they 
are  classed  as  personal  property.*" 

"  Buster  V.  Newkirk,  20  Johns.  (N.  testator,    and    it    afterward    becomes 

Y.)  75;  Pierson  v.  Post,  3  Caine  (N.  necessary  to  show  the  amount  of  such 

Y.)    175,  2  Am.  Dec.  264;   Common-  property,    parol    proof    is    admissible, 

wealth  i-.  Chace,  9  Pick.   (Mass.)   15,  Smith  v.  Smith,  76  Ind.  236. 

19  Am.  Dec.  348.  ^  Where  a  person  at  the  time  of  his 

"'Ferguson   v.   Miller,    1    Cow.    (N.  appointment    as    administrator    is    in- 

Y.)  243,  13  Am.  Dec.  519.  debted  to  the  estate,  he  should  inven- 

"Waterhouse    v.    Bourke,    14    La.  tory  and  charge  himself  with  the  debt; 

Ann.  358;  Mulford  v.  Mulford,  40  N.  but  if  he  fails  to  account  for  the  same 

J.  Eq.  163.  his  sureties  are  not  liable,  if  they  show 

"^  State  V.  Scott,  12  Ind.  529 ;  State  that    he    was    insolvent,    beyond    the 

V.   Bennett,  24   Ind.   383.     Where   all  amount  that  could  have  been  saved  to 

the  parties'  interested  in  a  decedent's  the  estate  by  the  exercise  of  diligence, 

estate  agree  upon  a  settlement  and  dis-  State  v.  Gregory,  119  Ind.  503,  22  N. 

tribution  under  a  will,  without  any  in-  E.  1. 

ventory  of  the  personal  estate  of  the  ^^  Schee  v.   Wiseman,   79   Ind.   389; 


230  INDIANA    PROBATE    LAW,  §    1 59 

Such  crops  as  are  growing  upon  the  land  at  the  death  of  the 
decedent  should  be  inventoried.^^ 

Crops,  however,  which  have  been  sown  after  the  death  of  the 
decedent  should  not  be  inventoried.^" 

Bank  deposits,  choses  in  action,  and  judgments  belonging  to 
and  in  favor  of  the  decedent  should  be  inventoried/^ 

A  judgment  for  alimony  in  favor  of  a  divorced  wife  upon  her 
death  goes  to  her  administrator.'* 

If  the  decedent  was  interested  in  a  firm  as  a  partner,  it  will  not 
be  necessary  for  his  executor  or  administrator  to  inventory  such 
partnership  interest,  because  he  can  exercise  no  control  over  it 
until  the  partnership  atYairs  have  been  settled  by  the  surviving 
partner,  and  then  his  right  of  possession  and  control  will  extend 
to  only  such  portion  of  such  deceased  partner's  interest  as  re- 
mains in  the  hands  of  the  surviving  partner  after  the  payment  of 
all  the  partnership  debts.  The  inventory  should,  however,  refer 
to  such  partnership  interest,  and  describe  its  character  and  loca- 
tion, without  attempting  to  give  any  detailed  or  itemized  state- 
ment of  the  property  composing  such  interest.*' 

An  administrator  has  no  right  to  carry  on  a  partnership  busi- 
ness in  the  place  of  his  decedent  who  was  a  partner  therein,  nor 
has  an  executor  any  such  right  unless  specially  authorized  to  do 
so  by  the  will  of  his  testator." 

Campbell  v.  Hunt,  104  Ind.  210,  2  N.  v.  French,  59  Miss.  632 ;  Hart  v.  Ang- 

E.  363,  3  N.  E.  879.  er,  38  La.  Ann.  341.   If  the  partnership 

"  Humphrey  V.  Merritt,  51  Ind.  197;  is   continued   according  to  the   terms 

Miller  v.  Wohlford,   119  Ind.  305,  21  of  a  will,  the  effect  is  to  create  a  new 

N.  E.  894.  partnership,  and  the  creditors  of  the 

■""Rodman  v.  Rodman,  54  Ind.  444;  new  firm  have  no  claim  upon  the  gen- 

Kidwell  V.  Kidwell,  84  Ind.  224.  eral  estate  of  the  deceased — only  on  so 

"Highnote  v.  White,  (H  Ind.  596;  much  of  it  as  is  invested  in  the  part- 
Morris  V.  Buckeye  &c.  Co.,  78  Ind.  86.  nership  business.     Pitkin  v.  Pitkin,  7 

"  Miller  V.  Clark,  23  Ind.  370.  Conn.   307,    18  Am.    Dec.    Ill;    Stan- 

^' Loomis    V.    Armstrong,    63    Mich,  wood  v.  Owen,  14  Gray  (Mass.)   195; 

355,  29  N.  W.  867;  Valentine  v.  Wy-  Vincent  v.  Martin,  79  Ala.  540.     It  is 

sor,  123  Ind.  47,  23  X.  E.  1076,  7  L.  R.  optional  with  the  executor  or  admin- 

A.  788n.  istrator  to  carry  on  the  business  even 

^  Burwell  v.   Cawood,  2  How.    (U.  where  an  apparent  duty  is  imposed  by 

S.)  560,  11  L.  ed.  378;  Smith  v.  Ayer,  the  will.     Edgar  v.  Cook,  4  Ala.  588; 

101  U.  S.  320,  25  L.  ed.  955 ;  Brasfield  Wild  v.  Davenport,  48  N.  J.  L.  129,  7 


i6o 


DISPOSITION    OF    PERSONAL    PROPERTY. 


231 


All  patents,  copyrights  or  extensions  of  either  are  personal 
property  and  should  be  inventoried.** 

§  160.  When  and  by  whom  the  inventory  must  be  filed.— 
Whoever  may  be  appointed  executor  or  administrator  must  make 
for  filing  in  the  circuit  court  from  which  such  appointment  issues 
an  inventory  of  the  personal  estate  of  his  decedent  withm  sixty 
days  after  such  appointment  is  made.*^  And  any  executor  or  ad- 
ministrator, on  the  failure  of  the  others  named  in  the  same  letters, 
may  make  and  return  such  inventory  and  appraisement,  and  those 
so  failing  shall  not  aftenvard  interfere  with  the  admmistration 
of  the  estate  of  the  deceased,  without  the  consent  of  the  acting 
executor  or  administrator  or  leave  of  the  court.*^ 

An  administrator  who  fails  to  file  an  inventory  as  required  by 
these  statutes  should  be  at  once  removed.-^  But  the  failure  to  file 
an  inventorv,  while  a  breach  of  duty  which  will  render  an  execu- 
tor or  administrator  liable  to  removal  and  liable  on  his  bond,  does 
not  render  the  administration  void."' 

Atl  295  57  \m.  Rep.  552n ;  Berry  v.  L.  Mo.  587.  The  will  of  a  partner 
Folkes  60  Miss  576;  Louisiana  Bank  providing  for  contmumg  his  capital  m 
Folkes,  60  M  ss.  0/0,  ^^^^  ^^^  authorize  the  execu- 

"  i7h;w  Pr  (X  Y)  385  For  if  tors  t;  invest  further  funds  therein, 
Td  st  ry  on  he  lil^s  he  will  nor  does  it  implicate  the  rest  of  his  e. 
t  ::::onali;  liahle  to  all  transa^ir.    ..    for    s^J^nt    husin..  ^h. 

escape  liability  to  the  heirs  he  must    W^      X^  P.    Ohio)^      ^  ^^^^^  ^^_ 
conduct  the  business  as  the  will  di-  ^   -^^^^    ^.    j^^^;,,„,   15   Barb, 

rects;  or,  if  there  are  no  directions,  as     S.)    U^ ,   i^itts        j 


his  testate  did  and  he  is  not  bound  to 
take  security  for  sales  on  credit  as  an 
administrator  is  usually  required  to 
do.  Cline's  Appeal,  106  Pa.  St.  617. 
If  a  partner's  will  provided  for  a  con- 
tinuation of  his  interest  in  the  firm, 
the  residue  of  his  estate  is  not  thereby 
implicated  in  liability  for  future  debts, 
nor  is  the  settlement  of  his  estate  sus- 
pended.    Peters  v.  Campbell,  3  West. 


( N  V  )'  310 ;  Wilson  v.  Rousseau,  4 
How.  '(U.  S.)  646,  11  L.  ed.  1141; 
Dudley  v.  Mayhew,  3  N.  Y.  9. 

-Burns'R.S.  1908,  §2777. 

«Burns'R.S.  1908,  §2784. 

^»  State  V.  Scott,  12  Ind.  529;  State 
V  Bennett,  24  Ind.  383. 

"State  V  Smith,  52  Conn.  5b/; 
Cooper  V.  Horner,  62  Tex  356;  Phe- 
lan  V.  Smith,  100  Cal.  158,  34  Pac.  667. 


232  INDIANA  PROBATE  LAW.  §  161 

The  Statute  makes  it  the  duty  of  an  executor  to  file  an  inven- 
tory, and  the  testator  cannot  relieve  him  of  this  duty  by  providing 
otherwise  in  his  will/" 

To  omit  assets  from  an  inventory  knowingly  and  purposely  is 
a  fraud  for  which  an  administrator  or  executor  will  be  held 
liable ;  but,  as  has  been  shown,  an  item  honestly  or  mistakenly 
omitted  is  no  fraud." 

Where  there  is  a  conflict  between  the  court  records  and  the 
inventory  the  records  will  control.''* 

§  161.  Separate  and  additional  inventories. — ^^'hen  such 
estate  is  situated  in  places  distant  from  each  other,  the  executor 
or  administrator  may  make  returns,  and  file  separate  inventories 
and  appraisements  for  each  of  said  places,  and  shall  have  power 
to  select  different  appraisers  in  each  case,  from  the  neighborhood 
in  which  such  estate,  or  the  greater  part  thereof,  may  be  situate, 
to  appraise  the  estate  specified  in  any  such  inventory.^' 

Such  executor  or  administrator  shall  make  further  inventories 
of  the  personal  estate  of  such  decedent,  as  the  same  may  come  to 
his  knowledge,  under  the  same  regulations  as  provided  in  case  of 
the  first  inventor}^^'' 

When  it  becomes  necessary  to  file  further  inventories,  a  failure 
to  do  so  is  as  much  a  breach  of  the  bond  of  an  executor  or  admin- 
istrator as  would  be  his  failure  to  file  the  original  one.^'^ 

If  new  assets  come  into  the  possession  of  an  executor  after  he 
has  filed  his  inventory,  this  statute  requires  him  to  make  a  new 
one,  and  the  same  rules  will  apply  to  the  new  inventor}-  as  to  the 
original  one. 

§  162.  What  shall  be  omitted. — Where  a  man  having  a 
family  shall  die,  leaving  a  widow  or  minor  child,  the  following 

'*  Potter  V.  McAlpine,  3  Dem.    (N.  "^Burns'  R.  S.  1908,  §  2789. 

Y.)  108.  =«  Burns'  R.  S.  1908,  §  2790. 

"'McNeel's  Estate,  68  Pa.   St.  412;  "State  v.  Scott,  12  Ind.  529;  Moore 

Speakman's  Appeal.  71  Pa.  St.  25.  v.  Holmes,  32  Conn.  553. 

"Ray  V.  Doughty,  4  Blackf.  (Ind.) 
115. 


§    1 62  DISPOSITION    OF    PERSONAL    PROPERTY.  233 

articles  shall  be  omitted  in  making  the  inventory,  and  shall  not  be 
considered  as  assets,  viz. : 

First.  All  the  articles  of  apparel  and  ornament  of  the  widow 
and  of  the  children  of  the  deceased. 

Second.  The  wearing  apparel  of  the  deceased,  which  shall  be 
distributed  at  the  discretion  of  the  widow;  or,  if  there  be  no 
widow,  in  the  discretion  of  the  executor  or  administrator,  among 
the  nearest  relatives,  unless  otherwise  legally  directed  to  be  dis- 
posed of  by  the  deceased. 

Third.  Bibles  and  school  books  used  in  the  family  of  such 
deceased. 

Fourth.  All  the  provisions  on  hand  provided  for  consumption 
by  the  family.  ^^ 

Besides  the  exceptions  in  favor  of  the  widow  and  minor  chil- 
dren of  a  decedent  made  by  this  statute,  they  are  also  permitted 
to  occupy  and  use,  rent  free,  for  the  space  of  one  year  from  the 
death  of  the  decedent,  the  dwelling-house  ordinarily  used  by  the 
family,  the  messuage  appertaining  thereto,  and  fields  adjacent,  if 
any,  not  exceeding  forty  acres.^^  And  they  will  be  entitled  to 
receive,  use  and  enjoy  the  fruits  and  products  of  the  same  which 
naturally  ripen,  mature  and  come  off  during  the  year  while  they 
have  the  right  to  occupy  the  premises.*'"  This  right  is  confined  to 
the  widow  and  minor  children  of  the  deceased,  but  if  the  children 
are  taken  away  the  widow  may  continue  to  occupy  the  premises 
alone  ;*'^  but  this  right  is  confined  exclusively  to  the  dwelling- 
house,  and  does  not  include  a  store  room  connected  with  it  in  the 
same  building. *'- 

The  crops  growing  upon  the  lands  to  which  the  widow  is  enti- 

**  Burns'  R.  S.  1908,  §  2779.  quent,  wife's  rights  are  the  same  as 

•^  Burns'  R.  S.  1908,  §  3030.  those  of  the  first.    Willetts  v.  Schuy- 

••  Swain   v.    Bartlow,    62    Ind.    546.  ler,  3  Ind.  App.  118,  29  N.  E.  273. 

Hoover  v.  Agnew,  91  Ind.  370.    In  this  ^  Weaver  v.  Lowe,  29  Ind.  57;  Jones 

last  case  the  widow's  right  was  held  v.  Jones,  81  Ind.  292. 

not  to  depend  on  the  existence  of  mi-  °- Williamson   v.    Ash,    7    Ind.    495; 

nor  children.     The  second,  or  subse-  Tucker  v.  Murphy,  71  Ind.  576. 


234  INDIANA    PROBATE    LAW.  §    1 62 

tied  by  right  of  quarantine,  at  the  death  of  her  husband,  should 
not  be  inventoried  by  his  administrator.*^^ 

The  title  to  the  above  enumerated  property  vests  in  the  widow 
and  children  at  once  on  the  death  of  the  husband."*  The  admin- 
istrator takes  no  title  or  right  to  any  of  the  omitted  property,  and 
cannot  sell  or  dispose  of  it  even  by  order  of  the  court. "^  But  if 
he  should  sell  them  he  will  be  liable  to  account  to  the  widow  and 
children  for  the  proceeds;'"^  or  the  widow  may  waive  her  right  of 
action  against  the  administrator  for  conversion  and  pursue  and 
obtain  the  proceeds.''' 

The  jewelry  of  the  deceased  husband,  such  as  his  watch,  watch 
chain  and  charm,  ring,  diamond  shirt  stud,  seals,  etc.,  are  not 
wearing  apparel  of  the  deceased  so  as  to  pass  under  the  above 
statute,  and  therefore  must  be  inventoried  by  the  executor  or  ad- 
ministrator.*'^ 

Under  the  right  of  quarantine  the  widow  and  children  not  only 
may  have  the  land  rent  free,  but  are  entitled  to  all  crops  ripening 
thereon  within  the  year.  But  such  crops  as  had  matured  and 
been  harvested  prior  to  the  husband's  death  belong  to  his  estate, 
and  cannot  be  claimed  under  the  right  of  quarantine.*^'* 

"^  Willetts  V.   Schuj-ler,  3  Ind.  App.  articles  cannot  be  substituted  for  those 

118,  29  N.  E.  273;  Swain  v.  Bartlow,  mentioned.       Bayless     v.     Bayless,     4 

62  Ind.  546.  Coldw.     (Tenn.)     359;     Johnson     v. 

"Kellogg    V.    Graves,    5    Ind.    509;  Henry,  12  Heisk.  (Tenn.)  696. 

Hastings    v.    Myer,   21    Mo.   519.      A  "' Coffinberry    v.    Madden,    30    Ind. 

woman  who  has  been  divorced  from  App.  360,  66  N.  E.  64,  96  Am.  St.  349 ; 

her  husband  has  no  right  under  this  Sawyer  v.  Sawyer,  28  Vt.  249. 

statute.    Dobson  v.  Butler,  17  Mo.  87 ;  «« Bush  v.  Bush,  41  Ind.  App.  46,  83 

Hettrick  v.  Hettrick,  55  Pa.  St.  290.  N.    E.    386.     The    court   in    this    case 

•^Carter    v.    Hinkle,    13    Ala.    529;  says:     "But  while  we   recognize   the 

Graves  v.  Graves,  10  B.  Mon.    (Ky.)  Iieneficent  purpose  of  the  statute,  and 

31.  the  liberality  with  which  it  should  be 

""  Willetts  V.   Schuyler,  3  Ind.  App.  construed,   yet   we   cannot   so   extend 

118,  29  N.  E.  273;  Cummings  v.  Cum-  the  statute  as  to  hold  that  it  gives  to 

mings,  51  Mo.  261.  the  family  of  the  deceased  crops  that 

*''  "Willetts  V.   Schuyler,  3  Ind.  App.  had    ripened    and    matured    and    had 

118,  29  N.  E.  273.     Where  the  widow  been   harvested   though    not    removed 

and  the  children  do  not  live  together  from    the    land    prior    to    decendent's 

the  court,  if  it  sees  fit,  may  divide  the  death.      If    wheat    cut    and    shocked 

stock     of     provisions     among     them,  should   go   to   the   widow   under   this 

Womack  v.  Boyd,  31  Miss.  443.    Other  section,   we   can   see   no   reason   why 


§     163  DISPOSITION    OF    PERSONAL    PROPERTY.  235 

§  163.  Appraisers,  their  appointment  and  duties. — The  ex- 
ecutor or  administrator  shall  cause  the  personal  estate  of  the 
decedent,  embraced  in  said  inventory,  to  be  appraised  by  two 
reputable  and  disinterested  householders  of  the  neighborhood, 
who,  before  proceeding  to  the  discharge  of  such  duty,  shall  take 
and  subscribe  an  oath  that  they  will  honestly  appraise  such  estate 
at  its  fair  cash  value;  which  oath  shall  be  returned  with  the  in- 
ventory.'*' The  appraisers  shall,  in  the  presence  of  each  other 
and  of  such  executor  or  administrator,  appraise  each  article  as 
specified  in  the  inventory,  at  its  true  value,  and  set  down  opposite 
to  each  article,  respectively,  the  value  in  dollars  and  cents,  in 
figures."^  \\'hen  by  the  terms  of  a  will  land  is  devised  to  an 
executor,  or  directed  by  such  will  to  be  sold  for  the  payment  of 
debts,  etc.,  such  land  must  also  be  appraised  by  the  appraisers  at 
its  true  value. ^"  The  oath  required  of  the  appraisers  may  be  ad- 
ministered by  the  executor  or  administrator  of  the  estate.'^ 

\\'here  a  decedent,  prior  to  his  death,  had  mortgaged  or 
pledged  personal  property,  his  executor  or  administrator  may 
redeem  such  property,  and  it  will  become  assets  in  his  hands  for 
all  it  will  bring  over  and  above  the  sum  paid  in  redemption,  and 
this  excess  over  the  amount  of  the  redemption  money  will  be  the 
appraised  value  of  such  property  on  the  inventory. 

While  an  appraisement  is  prima  facie  evidence  of  the  value  of 
the  estate  appraised,  it  is  not  conclusive  either  upon  the  executor, 
administrator,  or  upon  any  person  interested  in  the  estate;  and 
parol  evidence  will  be  admitted  to  establish  the  real  value  of  the 
property  so  appraised.'* 

wheat  cut  and  stacked  should  not,  and  estate,  and  not  to  his  widow ;  and  the 
if  wheat  cut  and  stacked  should  be  so  court  erred  in  ordering  the  adminis- 
considered,   then  hay  in  the  barn  or  trator  to  pay  the  proceeds  over  to  the 
corn  in  the  crib  would  be  in  the  same  widow." 
categor3\     In  the  case  before  us  the  ™  Burns'  R.  S.  1908,  §  2777. 
widow  could  have  obtained  a  crop  of  "  Burns'  R.  S.  1908,  §  2778. 
wheat  by  sowing  it   in   the   fall   and  '-  Burns'  R.  S.  1908,  §  2780. 
harvesting  it  before  her  j^ear  had  ex-  "  Burns'  R.  S.  1908,  §  2987. 
pired.    The  wheat  having  ripened,  and  "*  Cameron  v.  Cameron,  15  Wis.   1, 
having    been     harvested    before     the  82  Am.  Dec.  652;  Williams  v.  Petti- 
death  of  decedent,  it  belonged  to  his  crew,  62  ^lo.  460;  Reed  v.  Gilbert,  32 


236  INDIANA    PROBATE    LAW.  §    1 64 

It  will  be  noticed  that  this  statute  requires  the  appraisers  to 
make  oath  to  appraise  the  property  at  its  "fair  cash  value,"  and 
further  that  they  shall  appraise  each  article  at  its  "true  value." 
This  would  seem  to  imply  that  the  legislature  intended  "true 
value"  to  be  the  "cash  value"  of  the  article,  but  this  does  not  rid 
the  question  entirely  of  difficulty.  It  has  been  held  that  "true 
value"  means  actual  cost,'^  but  it  would  seem  that  actual  cost  or 
intrinsic  value  are  not  in  a  legal  sense  "true  value."  In  a  scientific 
sense  value  is  interpreted  as  exchangeable  value.  In  other  words, 
property  is  worth  what  it  will  bring  in  something  else  of  value ; 
this,  if  money,  is  cash  value;  so  appraisers,  therefore,  need  not  be 
concerned  about  intrinsic  value  or  cost  price,  but  only  the  amount 
of  money  the  property  will  bring  if  sold  at  public  auction  to  the 
highest  bidder. 

§  164.  The  widow's  selection. — The  widow  of  the  dece- 
dent, whether  he  die  testate  or  intestate,  may,  at  any  time  before 
the  sale,  select  and  take  articles  therein  named  at  the  appraise- 
ment, not  exceeding  in  the  aggregate  five  hundred  dollars.  Each 
article  taken  by  her  shall  be  so  noted  on  the  inventory  opposite 
the  article  taken,  or  a  separate  inventory-  may  be  made  of  the 
articles  so  taken,  and  returned  with  the  general  inventory.  She 
shall  execute  a  receipt  therefor  to  the  executor  or  administrator, 
which  shall  be  returned  and  filed  with  the  inventory.  If  the 
widow  fail  or  refuse  to  select  and  take  all  or  any  part  of  the 
articles  in  this  section  provided,  she  shall  be  entitled  to  the 
amount  of  the  deficiency,  in  cash,  out  of  the  first  moneys  received 
by  the  executor  or  administrator  in  excess  of  the  amount  neces- 
sary to  pay  the  expenses  of  administration  and  of  the  last  sickness 
and  funeral  of  the  deceased:  Provided,  That  if  the  estate  be 
clearly  solvent,  she  shall  be  entitled  to  such  payment  out  of  the 
first  moneys  received  by  such  executor  or  administrator.  If  the 
personal  estate  of  the  decedent  be  insufficient  to  pay  the  amount 

Me.  519;  Smith  v.  Smith,  76  Ind.  236.  any  inventory,  the  value  of  the  prop- 
In  this  last  case  it  was  held  that  if  a  erty  may  be  shown  by  parol. 
settlement  of  the  estate  is  agreed  upon  "  United  States  v.  Tappan,  11  Wheat, 
by  all   the  parties   interested  without  (U.  S.)  419,  6  L.  ed.  509. 


§    164  DISPOSITION    OF    PERSONAL    PROPERTY.  237 

due  the  widow,  in  cash,  as  aforesaid,  the  deficit  shall  constitute 
a  lien  upon  the  real  estate  of  the  decedent  liable  to  sale  for  the 
payment  of  debts ;  which  lien  may  be  enforced,  upon  the  petition 
of  the  executor  or  administrator,  in  like  manner  as  lands  of  the 
decedent  are  sold  for  the  payment  of  debts,  and  shall  be  superior 
to  the  lien  of  judgments  upon  said  real  estate  rendered  against 
the  decedent." 

The  right  of  selection  conferred  upon  the  widow  by  this  statute 
continues  up  to  the  time  of  the  sale  of  the  personal  property  of 
the  decedent ;  and  it  is  not  in  the  power  of  the  executor  or  admin- 
istrator to  impair  or  abridge  this  right  by  demanding  that  she 
select  the  articles  to  be  taken  before  the  inventory  is  returned. 
Nor  is  her  right  to  make  such  selection,  after  the  inventory  has 
been  returned,  affected  by  the  fact  that  she  may  have  made  a 
partial  selection  before  such  return.  Within  the  time  fixed  by 
the  statute  her  right  to  election  to  take  at  the  appraisement  is 
absolute." 

And  if  the  administrator  or  executor  is  threatening  to  sell 
property  which  she  needs  and  cannot  readily  replace,  the  widow 
has  the  right  to  enjoin  such  sale.  The  property  is  hers  and  can- 
not be  sold  by  the  executor  or  administrator.^^ 

This  statute  is  clear  and  comprehensive,  and  gives  to  the  widow 
the  sum  specified  therein  out  of  property  of  which  her  husband 
died  the  owner,  and  which,  if  living,  he  might  have  exempted 
from  a  sale  on  execution.  And  such  sum  is  secured  to  her  even 
though  an  execution  had  been  levied  upon  the  husband's  property 
before  his  death;  the  statute  providing  that  "the  death  of  a  de- 
fendant after  the  execution  is  placed  in  the  hands  of  the  sheriff*  to 
be  executed,  shall  not  affect  his  proceedings  thereon,  except  that 
the  amount  of  property  allowed  absolutely  to  the  widow  of  the 

.     ""Burns'  R.  S.  1908,  §  2786.  "'Denny  v.  Denny,  113  Ind.  22,  14  N. 

"Denny  v.  Denny,  113  Ind.  22,  14  N.  E.  593.     The  appraisement  is  not  con- 

E.  593;  Wilson  v.  Moore,  86  Ind.  244.  elusive  as  to  the  value  of  the  goods 

The  failure  of  an  administrator  to  file  claimed.     The  value  of  the  property 

his  inventory  does  not  affect  the  right  may   be    otherwise   proved.      Pace   v. 

of  the  widow.     Kelly's  Estate,  14  Pa.  Oppenheim,    12    Ind.    533;    Dean    v. 

Co.  Ct.  51.  Richards,  16  Ind.  114. 


-3^  INDIANA    PROBATE    LAW.  §    164 

decedent  shall  be  exempt  from  levy  and  sale  under  such  exe- 
cution."'® 

Taking  this  section  of  the  statute  with  the  one  above  set  out, 
and,  as  the  court  says,  "it  seems  to  us  that  it  is  impossible  to  avoid 
the  conclusion  that  the  legislature  meant  to  secure  to  the  widow 
five  hundred  dollars  in  all  cases  where  the  husband  has  not.  in  his 
lifetime,  by  a  voluntar>'  contract  divested  himself  of  ownership  or 
so  encumbered  the  title  as  to  destroy  the  right  of  exemption."'*' 

Those  cases  which  seem  to  hold  to  a  contrary  doctrine'^  are  all, 
with  the  exception  of  one,  based  upon  other  statutes  which  are 
very  different  in  their  terms  from  the  statute  under  considera- 
tion. This  one  case,  Mead  v.  McFadden,  68  Ind.  340,  is  based 
upon  this  statute,  but  when  its  reading  was  different  from  what 
it  is  now.  Under  the  statute  as  it  then  read,  such  part  of  the 
widow's  allowance  as  could  not  be  paid  out  of  personal  property 
of  the  estate  was  made,  as  now,  a  lien  upon  the  decedent's  real 
estate,  but  "to  be  paid  in  the  same  order  in  which  judgments  and 
mortgages"  were  paid.  And  in  that  case  her  lien  was  held  to  be 
junior  to  the  lien  of  judgments  taken  against  her  husband  in  his 
lifetime.  But  the  statute  now  expressly  provides  that  the  lien  of 
the  widow  shall  be  superior  to  that  of  judgments  rendered  against 
the  decedent. 

§  165.  Same — Statute  construed. — The  right  given  by  this 
statute  to  the  surviving  wife  is  as  full  as  the  right  of  any  dis- 
tributee to  the  assets  remaining  for  distribution  after  an  estate 
has  been  settled.  It  gives  her  a  credit  for  the  necessaries  of  life 
at  once  upon  the  husband's  death,  and  the  means  of  decent  burial 
should  she  die  before  the  amount  comes  to  her  hands.  The 
statute  requires  a  liberal,  instead  of  a  narrow,  interpretation,  in 
order  to  accomplish  the  purposes  of  the  legislature  in  enacting  it. 
The  amount  allowed  the  widow  is  hers  absolutely,  and  upon  her 
death  before  claiming  it,  it  belongs  to  her  estate  and  goes  to  her 

'' Burns' R.  S.  1908,  §  833.  Mead    v.    McFadden,    68    Ind.    340; 

'"Dixon  V.  Aldrich,  127  Ind.  296,  26  Quakenbush   v.   Taylor,  86  Ind.  270; 

>^'-  E.  843.  Fleming  v.  Henderson,  123  Ind.  234, 

^'Recker    v.    Kilgore,    62    Ind.    10;  24  N.  E.  236. 


165  DISPOSITIOX    OF    PERSONAL    PROPERTY. 


239 


personal  representatives/'^  The  right  and  title  of  the  widow  to 
this  allowance,  either  in  property  or  money  at  her  election,  vests 
in  her  and  becomes  absolute  immediately  on  the  death  of  the  hus- 
band. ^^  In  order,  however,  to  perfect  and  complete  her  right  of 
possession  to  such  allowance  there  must  be  an  appraisement  in 
the  court  of  administration  and  a  selection  of  the  property  by 
her,  under  such  appraisement.®*  The  right  of  the  widow  to  this 
allowance  must  be  determined  by  the  law  in  force  at  the  date  of 
the  death  of  her  husband.  The  legislation  of  the  state  on  this 
subject  has  been  subject  to  some  changes,  but  there  has  been  a 
constant  tendency  to  make  a  better  provision  for  the  widow.  The 
amount  allowed  to  her  has  been  increased  from  one  hundred 
dollars  to  five  hundred  dollars;  and  from  being  confined  in  her 
selection  to  property  only,  she  may  now  select  either  property  or 
money,  or  both,  as  she  may  choose;  instead  of  the  hen  of  her 
claim  being  confined  to  the  personal  property  of  the  estate  alone, 
the  allowance  is  made  a  lien  against  the  decedent's  real  estate, 
and  as  such  lien,  instead  of  being  classed  with  judgments,  mort- 
gages and  other  specific  liens  against  real  estate,  it  is  made  a  lien 
superior  to  judgments,  and  is  preferred  to  all  classes  of  debts 
save  expenses  of  administration,  funeral  expenses,  and  expenses 
of  the  last  illness.®^ 

The  amount  allowed  the  widow  by  this  statute  is  not  in  the 
nature  of  an  interest  in  the  estate,  but  is  a  preferred  claim  which 
is  payable  out  of  the  personal  estate  if  it  is  sufficient  for  that 
purpose,  and  if  it  is  not,  then  lands  of  the  decedent  must  be  sold 
to  pay  it.*® 

*' Bratney    v.    Curry,    33    Ind.    399;  which  gives  the  widow  the   right  to 
Mills  V,    Marshall,  8   Ind.   54.     Such  five  hundred  dollars  is  clear  and  corn- 
claim  may  be  released  by  the  widow,  prehensive,  and  it  expresses  the  inten- 
but  no  act  of  the  husband  can  deprive  tion  of  the  legislature  to  give  her  that 
her  of  it  unless  she  consents.     Clay-  sum  out  of  property  of  which  her  hus- 
pool  v.  Jaqua,  135  Ind.  499,  35  N.  E.  band  died  the  owner,  and  which  he 
285.  might,  if  living,  have  exempted  from 
"  Kellogg  v.  Graves,  5  Ind.  509.  sale  on  execution." 
^  Harrell  v.  Hammond,  25  Ind.  104.  ''  Claypool  v.  Jaqua,  135  Ind.  499,  35 
"  Leib  V.  Wilson,  51  Ind.  550;  Dixon  N.  E.  285.    Money  which  is  claimed  as 
V.  Aldrich,  127  Ind.  296,  26  N.  E.  843.  firm  property  and  not  a  part  of  the 
In  this  case  it  is  said :     "The  statute  deceased  husband's  estate,  cannot  be 


240  INDIANA    PROBATE   LAW.  §    1 66 

The  amount  allowed  the  widow  by  this  statute,  when  taken  by 
her,  either  in  property  or  money,  must  be  considered  as  so  much 
deducted  from  the  assets  of  the  estate  in  the  hands  of  the  execu- 
tor or  administrator,  without  reference  to  the  debts  of  the  estate, 
and  it  constitutes  no  part  of  the  surplus  remaining  after  the  pay- 
ment of  debts,  for  distribution.  She  is  entitled  to  her  full  dis- 
tributive share  out  of  such  surplus  under  the  statute  of  distribu- 
tion, notwithstanding  her  selection  under  the  above  statute.®^ 

§  166.  Same — Effect  of  a  will. — In  quite  a  number  of  cases 
it  has  been  decided  that  the  widow  of  a  testator  is  entitled  to  the 
allowance  made  by  the  statute,  out  of  his  estate  independent  of 
debts,  dower,  or  any  testamentary  provision  in  her  behalf  in  the 
will  of  such  testator.^*  But  this  doctrine  has  been  criticised  and 
limited  in  the  case  of  Langley  v.  Mayhew,  107  Ind.  198,  6  N.  E. 
317,  8  N.  E.  157,  where  it  is  expressly  decided  that  the  widow  of 
a  testator  may,  by  her  election  to  take  under  an  inconsistent  pro- 
vision of  his  will,  so  release  and  relinquish  her  right  to  the  provi- 
sion made  for  her  by  this  statute  as  to  bar  her  from  afterward 
claiming  it.  And  it  has  also  been  decided  that,  where,  under  a 
will,  the  testator's  widow  had  received  more  than  the  amount  pro- 
vided for  in  this  statute,  and,  afterwards,  in  a  suit  for  that  pur- 
pose instituted  by  her  the  will  was  set  aside,  she  could  not,  while 
retaining  the  property  she  had  received  under  the  will,  claim  the 
allowance  the  statute  gave  to  her.  In  Hurley  v.  Mclver,  119  Ind. 
53,  21  N.  E.  325,  it  is  said:  ''While  a  testator  may  not  have  the 
power  to  dispose  of  property  which  the  law  casts  upon  his  widow, 
nor  to  deprive  her  of  the  five  hundred  dollars  to  which  she  is  en- 
titled by  law,  yet  if  it  plainly  appears  that  it  was  his  purpose  to  do 

set  off  to  the  widow.     Burroughs  v.  ^  Cheek  v.  Wilson,  7  Ind.  354;  Lor- 

Knuton,  (R.  I.)  13  Atl.  108.  ing  v.  Craft,  16  Ind.  110;  Dunham  v. 

"  Hays  V.  Buffington,  2  Ind.  369.    It  Tappan,    31    Ind.    173;    Schneider   v. 

is  not  necessary  for  the  widow  to  give  Piessner,  54  Ind.  524 ;  Nelson  v.  Wil- 

written  notice  of  her  claim.    Bacon  v.  son,  61  Ind.  255 ;  Whiteman  v.  Swem, 

Perkins,  100  Mich.  183,  58  N.  W.  835;  71  Ind.  530;  Smith  v.  Smith,  76  Ind. 

Rush  V.  Kelly,  34  Ind.  App.  449,  1Z  N.  236. 
E.   130;   Graham  v.  Russell,  152  Ind. 
186,  52  N.  E.  806. 


§    1 66  DISPOSITION    OF    PERSONAL    PROPERTY.  24I 

SO  and  the  widow  has  accepted  a  testamentaty  provision  made  for 
her,  such  acceptance  is  a  confirmation  of  the  testamentary  dispo- 
sition, and  waives  her  right  under  the  law."'' 

In  Shafer  v.  Shafer,  129  Ind.  394,  28  N.  E.  867,  the  court  says : 
"Whatever  may  have  been  the  rule  of  construction  m  this  state 
prior  to  the  decision  in  the  case  of  Langley  v.  Mayhew,  107  Ind. 
198  6  N  E  317,  8  N.  E.  157,  it  is  now  settled  that  where  a  hus- 
band has  made  specific  provision  for  his  widow,  and  has  also  dis- 
posed of  all  his  other  property  in  such  a  way  as  to  make  it  appar- 
ent that  the  assertion  by  the  widow  of  the  right  to  take  both 
under  the  law  and  under  the  will  would  defeat  the  manitest  pur- 
pose of  the  testator,  she  will  be  confined  to  the  provisions^made  by 
the  will,  if  she  elects  to  take  the  provision  made  for  her  _ 

The  widow's  right  to  this  allowance  may  be  waived  by  her  m 
an  ante-nuptial  agreement  between  herself  and  her  husband. 
And  such  agreement,  where  it  relates  to  real  as  we  1   as  personal 
property,  is  within  the  statute  of  frauds,  and  must  be  in  writ- 

92 

'""^In  Booi-d  V.  Boord,  163  Ind.  307.  on  page  309,  7i  N.  E.  891, 
the  court  savs :  "It  may  be  said  to  be  the  settled  rule  m  this  state 
that  where  a  husband  has  made  a  specific  testamentary  prov  sion 
for  his  widow,  and  disposed  of  the  remainder  of  his  P^P^^'^y  ^^ 
others,  the  widow  will  not  be  pem.itted  to  take  both  under  the  will 

»  Renner  v.  Ross,  111  Ind.  269,  12  N.  "  Shaffer  v.  Richardson,  27  DkL  122 ; 

T7   ^08    Shinmanv  Kevs  127  Ind.  353.  Sherwood  v.  Thomasson,  124  Ind.  541, 

E.  508,  bhipman  \.  ive\b,  1^/  Houshton  v.  Houghton, 

26  N.  E.  896;   Whisnand  v.  Fee    21  34  ^  •7-  ^f '/\°^=  j^^,  69;  Claypool 

Ind.  App.  270,  52  N.  E.  229;  Boord  v.  14  Ind.  ^0^ 7^^n.^^3^5^^   ^  ^^ 

Boord,  163  Ind.  307,  71  N.  E.  891.  v.  J-Jl^a  135  Ind^4^,  35  .                ^^ 

^  Tt  i^  true  that  a  testator  cannot  '-  Rainbolt  v.  East,  50  inu.  o     , 

It  is  true  tndi  a   i  concealing  an  ante- 

n.ay  waive  the  provision  made  by  law,  husband    ^e  wid-v  ob  a 

and   take    in   lieu    of   it   a    provision  jf  ""^^^^  °^  j^^^l^  ,  "he  ^dminis^^^ 

n.ade  by  the  will  of  her  husband    is  f^-^/^^t^^^j'^^J.^Hng,' Mcintosh, 

too  well  settled  to  require  the  citation  to^r^n  damages,  ^o^^hn. 

.         .      ..  89  Ind.  593. 
of  authority. 


1(5_Pro.  L.\w. 


242  INDIANA    PROBATE    LAW.  §    1 67 

and  under  the  law  when  such  a  taking  will  have  the  effect  of  de- 
feating the  manifest  purpose  of  the  testator.""^ 

§  167.  Same — Widow  may  maintain  action  for. — Where 
the  widow  has  demanded  of  the  executor  or  administrator  her 
allowance  under  this  statute  and  has  been  refused,  such  executor 
or  administrator  becomes  liable  to  her  on  his  bond  for  the  amount 
of  her  allowance.^*  And  it  is  a  sufficient  demand  for  such  widow 
to  inform  the  executor  or  administrator  that  she  has  decided  to 
make  her  selection  under  the  statute."'^  This  is  a  duty  imposed 
upon  an  executor  or  administrator,  and  he  is  required  to  perform 
it  before  he  can  make  a  final  settlement  of  the  estate.  And  in 
case  of  his  neglect  or  refusal  to  discharge  this  duty,  he  may  be 
compelled  to  do  so  by  an  order  of  court,  made  uix)n  the  applica- 
tion of  the  widow. ^° 

An  action  may  be  maintained  by  the  widow  against  the  execu- 
tor or  administrator  to  have  the  allowance  made  her  by  this  stat- 
ute set  off  to  her,  and  in  such  action  she  is  a  competent  witness. ^^ 
The  judgment  in  such  action  is  in  the  form  of  an  order  by  the 
court  requiring  the  executor  or  administrator  to  set  apart  to  her 
the  specific  property  claimed,  or  to  pay  to  her  the  amount  in 
money.®^ 

The  statute  makes  this  claim  of  the  widow  a  preferred  one, 
and  if  an  executor  or  administrator  should  pay  out  the  assets  of 
the  estate  upon  the  general  debts  to  the  neglect  of  the  claim  of  the 
widow  he  would  perhaps  be  held  liable. °^ 

And  where  the  administrator  or  executor  has  refused  to  pay 
the  allowance  provided  for  her  by  this  statute,  and  she  is  com- 

'^  Pierce  v.  Pierce,  21  Ind.  App.  184,  that  she  will  make  her  selection.  Ham- 

51  N.  E.  954;  Blake  v.  Blake,  15  Ind.  ilton  v.  Matlock,  22  Ind.  47. 

App.  492,  44  N.  E.  488.  *'  She  is  entitled  to  an  order  of  court 

*•  Walker  v.  Prather,  3  Ind.  112.  requiring  the  administrator  to  set  off 

"^  Hamilton  v.  Matlock,  22  Ind.  47.  to  her  the  property  selected.     Brown- 

"' Browning  v.   McCracken,  97  Ind.  ing  v.  McCracken,  97  Ind.  279;  Zeigler 

279.  V.  Mize,  132  Ind.  403,  31  N.  E.  945. 
"  Sherwood  v.  Thomasson,  124  Ind.        ^  Cunningham    v.    Cunningham,  94 

541,  24  N.  E.  334.    It  is  a  sufficient  de-  Ind.   557 ;   La   Plante  v.   Convery,  98 

nial  if   she   inform  the  administrator  Ind.  499. 


§    l68  DISPOSITIOX    OF    PERSONAL    PROPERTY.  243 

pelled  to  sue  for  it,  she  is  entitled  to  interest  on  the  amount  due 
her  from  the  time  of  such  refusal.^ 

A  wife  who  is  Hving  in  a  state  of  adulter\%  apart  from  her 
husband,  at  the  time  of  his  death,  is  not  allowed  the  benefit  of 
this  statute ;  she  can  take  none  of  his  property.^ 

In  the  absence  of  any  averment  and  proof  to  the  contrary,  the 
presumption  is  in  favor  of  chastity,  and  it  is  not  necessary  for  the 
widow,  in  her  petition  to  have  property  set  off  to  her,  to  allege 
that  she  had  not  deserted  her  husband  and  was  not  living  in 
adultery  at  the  time  of  his  death.^ 

There  must,  however,  have  been  a  valid  marriage.  If  she  was 
simply  living  with  the  decedent,  although  treated  by  him  as  his 
wife,  she  would  not  at  his  death  be  entitled  to  the  allowance.* 

§  168.  Return  of  the  inventory. — Such  inventory  and  ap- 
praisement, and  the  inventory  of  the  articles  taken  by  the  widow, 
shall,  when  completed,  be  carefully  added  up,  and  the  amounts 
set  down  in  the  footings ;  and  said  inventories  and  appraisements 
shall  be  subscribed  by  the  appraisers  and  such  executor  or  admin- 
istrator, and  returned  by  the  latter  to  the  clerk  of  the  proper 
circuit  court  within  thirty  days  thereafter.  The  executor  or  ad- 
ministrator shall  thereupon  take  and  subscribe  an  oath  before 
said  clerk,  to  be  indorsed  upon  or  attached  to  such  inventories, 
that  the  same  is  a  true  and  complete  statement  of  all  the  personal 
estate  of  the  decedent  which  has  come  to  his  knowledge,  and  of 
the  property,  and  appraisement  thereof,  taken  by  the  widow. ^ 

An  inventory  when  so  returned  is  only  prima  facie  evidence  of 
the  amount  of  property  belonging  to  the  estate ;  but  in  a  contro- 
versy between  the  appraisers  and  the  executor  or  administrator 
the  burden  of  disproving  its  correctness  is  thrown  upon  the  lat- 
ter.« 

Every  executor  or  administrator  shall  make  out,  and  retain  in 

'  Brown  v.  Bernhamer,  159  Ind.  538,  "  Grimm's  Estate,  131  Pa.  St.  199,  18 

65  N.  E.  580.  Atl.  1061,  17  Am.  St.  796,  6  L.  R.  A. 

*Owen  V.  Owen,  57  Ind.  291.  717. 

»  Sher^vood  v.  Thomasson,  124  Ind.  '  Burns'  R.  S.  1908,  §  2787. 

541,  24  X.  E.  334;  Zeigler  v.  Mize,  132  « Schouler  Extrs.  &  Admrs.,  §  233. 
Ind.  403,  31  X.  E.  945. 


244  INDIANA    PROBATE    LAW.  §    1 69 

his  possession,  a  duplicate  of  each  inventory  and  appraisement  of 
the  personal  estate  made  oat  by  him  and  recorded  as  aforesaid. '^ 

§  169.  Examination  and  approval. — The  clerk  of  the  cir- 
cuit court,  in  vacation,. or  the  judge  thereof  to  whom  such  inven- 
tory and  appraisement  are  returned,  shall  immediately  examine 
the  same,  and  indorse  an  approval  thereon  if  found  correct  and  in 
proper  form,  and  the  clerk  shall  file  and  record  the  same  in  the 
record  kept  for  that  purpose;  if  the  same  be  found  incorrect  or 
informal,  the  defect  shall  be  noted  thereon,  and  the  inventoiy 
and  appraisement  returned  to  the  executor  or  administrator  for 
correction;  and  the  same,  when  corrected,  shall  be  returned  to 
the  clerk,  and  filed  and  recorded  as  aforesaid.^ 

§  170.  Sale  of  personal  property — When  made. — Such  ex- 
ecutor or  administrator,  immediately  after  filing  any  such  in- 
ventory and  appraisement,  shall  proceed  to  sell,  at  public  auction, 
the  personal  property  of  the  deceased  not  taken  l)y  the  widow." 

The  statute,  as  a  general  rule,  contemplates  that  the  personal 
property  of  a  decedent  shall  be  sold  at  public  sale;  but  the  court 
may,  in  some  cases,  order  a  private  sale.  When  sold  at  private 
sale,  such  property  must  bring  the  full  appraised  value.  It  is 
necessary,  before  offering  personal  property  of  a  decedent  for 
sale,  either  at  public  or  private  sale,  that  the  executor  or  admin- 
istrator should  have  such  property  duly  appraised,  to  properly 
convey  the  title  to  the  same.^"  The  power  to  sell  a  decedent's 
personal  property  is  one  which  is  conferred  upon  an  executor  or 
administrator  by  statute ;  and,  when  letters  testamentary  or  of 
administration  are  properly  issued,  they  authorize  and  make  it 
the  duty  of  the  executor  or  administrator  to  sell  the  personal 
property  of  his  decedent ;  and  such  sale,  if  made  in  compliance 
with  the  statute  regulating  such  matters,  passes  the  title  to  the 
property  to  the  purchaser,  even  though  the  sale  was  wholly  un- 
necessary.^^ 

'  Burns'  R.  S.  1908,  §  2791.  Citizens  St.  R.  Co.  v.  Robbins,  128  Ind. 

'Burns'  R.  S.  1908,  §  2788.  449,  26  N.  E.  116,  25  Am.  St.  445,  12 

"  Burns'  R.  S.  1908,  §  2792.  L.  R.  A.  498. 

'"Ramey   v.   McCain,   51    Ind.  496;        " 'The  common  law  right  of  the  ad- 


§170  DISPOSITION    OF    PERSONAL    PROPERTY.  245 

Nothing  but  fraud  or  collusion  between  the  executor  or  admin- 
istrator and  the  purchaser,  in  which  both  participated,  would 
avoid  a  sale  so  made/"  And  whether  the  sale  be  public  or  private, 
a  purchaser  of  any  property  sold  must  comply  with  his  bid  and 
the  terms  of  the  sale,  or  he  becomes  liable  to  the  executor  or  ad- 
ministrator for  the  difference  between  his  bid  and  what  the  prop- 
erty brought  on  a  resale  thereof,  if  it  sold  for  an  amount  less 
than  his  bid."  An  executor  or  administrator  has  the  right  to 
employ  an  auctioneer  to  make  such  sale  for  him.^* 

Where  full  power  is  conferred  by  will  upon  an  executor  to  sell 
and  convey  property  of  his  testator  without  reporting  the  sales 
or  conveyances  to  the  proper  court  for  confirmation,  it  will  not 
restrict  the  power  of  the  court  to  require  a  proper  application  of 
the  proceeds  of  such  sales. ^^  The  executor  or  administrator, 
being  a  trustee  of  the  estate  of  his  decedent,  cannot  purchase 
property  of  the  estate,  either  directly  or  indirectly,  at  his  own 
sale  or  that  of  another.  Such  purchase,  if  made,  will  be  set  aside 
upon  the  application  of  the  cestui  que  trust. ^*'' 

This  statute  contemplates  a  sale  at  public  auction,  after  notice, 
and  the  return  of  the  sale  bill  kept  by  the  clerk  of  such  sale  is  all 
the  report  of  a  public  sale  the  law  requires.  Title  to  personal 
property  sold  at  a  public  sale  under  this  statute  passes  at  once  to 
the  purchaser  upon  his  compliance  with  the  tenns  of  the  sale. 

All  personal  property  must  be  sold  at  public  auction  unless  the 

jninistrator  to  sell  and  dispose  of  per-  private   sale  of  personal  property  of 

sonal  property  does  not  exist  in  this  the    decedent   by   an   administrator  is 

state.     Sales  of  such  property  must  be  most  useful  where  the  property  is  of  a 

made  in  the  manner  prescribed  by  our  perishable  nature,  such  as  can  best  be 

statutes  upon  the  subject.     In  the  ab-  disposed  of  in  the  public  market,  or 

sence   of   an   order    from   the   proper  such  as  would  probably  be  sacrificed  at 

court,   the   sale   must   be    public,    and  a  public  sale."     Citizens  St.  R.  Co.  v. 

where  a  sale  is  made  at  private  sale  Robbins,  128  Ind.  449,  26  N.  E.  116,  25 

under  the  order  of  the  court,  it  must  Am.  St.  445,  12  L.  R.  A.  498. 

be    made    in    substantial    compliance  "  Meek  v.  Spencer,  8  Ind.  118. 

with  the  order."    Citizens  St.  R.  Co.  v.  "  Lewis  v.  Reed,  11  Ind.  239. 

Robbins,  128  Ind.  449,  26  N.  E.  116,  25  "  Ex  parte  Hayes,  88  Ind.  1. 

Am.  St.  445,  12  L.  R.  A.  498.  "Martin  v.  Wyncoop,  12  Ind.  260; 

"Weyer  v.   Second  Nat.   Bank,  57  Brackenridge    v.    Holland,   2    Blackf. 

Ind.  198.    "The  statute  authorizing  the  (Ind.)  Zll ,  20  Am.  Dec.  123. 


246  INDIANA  PROBATE  LAW.  §  I7I 

executor  or  administrator  obtain  an  order  of  court  authorizing  a 
private  sale.^^ 

§  171.  Postponement  of  the  sale. — Whenever  it  shall  be 
advantageous  to  the  estate,  the  executor  or  administrator  may 
postpone  the  sale  of  all  or  any  portion  of  the  personal  property 
until  the  first  term  of  the  circuit  court  succeeding  the  filing  of 
the  inventory.  For  the  same  cause  the  court  may,  at  any  time 
after  the  filing  of  the  inventory,  on  petition  of  the  executor  or 
administrator,  and  satisfactory  proof,  postpone  the  sale  of  all  or 
any  portion  of  the  personal  property  from  time  to  time  for  any 
period  deemed  necessary.  If  the  sale  of  said  property  be  required 
for  the  payment  of  debts,  it  shall  not  be  postponed  longer  than 
six  months  after  filing  the  inventory.  No  notice  of  the  filing  of 
such  petition  shall  be  required,  nor  shall  the  creditors  or  the  heirs 
be  necessary  parties,  but  any  one  of  either  or  any  legatee  may 
appear  and  contest  the  same.  The  court  may  also  require  addi- 
tional security  from  the  executor  or  administrator  when  neces- 
sary for  the  safety  of  the  estate.  When  all  the  liabilities  of  the 
estate  are  paid  and  satisfied,  it  may,  on  petition  of  all  the  heirs 
and  other  persons  entitled  to  distribution,  be  finally  settled  with- 
out the  sale  of  such  property  by  the  executor  or  administrator.^^ 
The  executor  or  administrator  may  defer  the  sale  of  the  annual 
crops  raised  by  labor,  and  which  are  not  severed  from  the  land  at 
the  time  of  such  sale,  beyond  the  time  herein  prescribed  for  the 
sale  of  the  personal  estate;  and  the  same  may  be  sold  before  or 
after  they  are  severed  from  the  land,  in  the  mode  prescribed  for 
the  sale  of  other  personal  property.^® 

§  172.  When  notice  of  sale  required. — In  all  sales  of  per- 
sonal property  by  an  executor  or  administrator  when  made  at 
public  auction  under  the  statute,  notice  of  the  time,  place,  and 
terms  of  such  sale  must  be  given,  except  only  in  cases  where  the 
appraised  value  of  the  personal  estate  does  not  exceed  one  thou- 
sand dollars.    The  statute  is  as  follows  :    "Three  weeks'  previous 

"  Weyer  v.   Second  Nat.   Bank,  57        ''  Burns'  R.  S.  1908,  §  2795. 
Ind.  198.  '"  Burns'  R.  S.  1908,  §  2797. 


§    173  DISPOSITION    OF    PERSONAL    PROPERTY.  247 

notice  of  the  time  and  place  of  such  sale  shall  be  given  by  such 
executor  or  administrator  in  some  public  newspaper  printed  and 
published  in  the  county  in  which  such  sale  is  to  be  made,  if  any 
newspaper  be  printed  therein,  and  by  posting  up  written  or 
printed  notices  thereof  at  three  public  places  in  the  township  in 
which  such  property  is  to  be  sold :  Provided,  That  if  the  amount 
of  said  personal  property  to  be  sold  does  not  exceed  one  thou- 
sand dollars  in  value  as  shown  by  the  appraisement,  the  same 
may,  in  the  discretion  of  the  court,  be  sold  upon  such  notice  of 
sale  as  the  court  may  prescribe.""" 

Personal  property  sold  at  private  sale  upon  the  order  of  the 
probate  court  may  be  sold  without  notice  unless  the  court's  order 
requires  notice  to  be  given,  in  which  case  such  order  should 
specify  when  and  how  such  notice  should  be  given. 

§  173.  Terms  of  public  sale. — A  credit  of  not  less  than 
three  nor  more  than  twelve  months  shall  be  given  at  all  such  sales 
of  personal  property  by  the  executor  or  administrator,  where  the 
amount  purchased  exceeds  five  dollars ;  and  notes  waiving  valua- 
tion and  appraisement  laws,  and  bearing  six  per  cent,  interest 
after  maturity,  with  sufficient  sureties,  shall  be  taken  in  all  sales 
of  personal  estate  of  the  deceased.^^ 

As  a  general  rule  an  executor  or  administrator,  upon  a  sale  of 
his  decedent's  property,  is  not  authorized  to  receive  anything  but 
money  in  payment  therefor.-^  This  statute,  however,  permits  a 
reasonable  credit  in  the  payment,  upon  the  purchaser  giving 
satisfactory  security.  An  executor  or  administrator  has  no  power 
to  apply  the  proceeds  of  such  sale  to  the  discharge  of  his  own  in- 
dividual liabilities;  and  if  he  attempt  to  do  so  and  afterwards 
fails  to  account  for  and  pay  over  in  money  such  proceeds,  an 
action  will  lie  for  their  recovery  against  such  executor  or  admin- 

**  Burns'  R.  S.  1908,  §  2793.  will  render  the  administrator  person- 

^  Burns'  R.  S.  1908,  §  2794.  ally  liable.    Parham  v.  Stith,  56  Miss. 

^  Chandler  v.    Schoonover,    14   Ind.  465,    or    if    the    security    accepted    is 

324;    Bevis    v.    Heflin,    63    Ind.    129.  worthless,  Shepard  v.  Shepard,  19  Fla. 

Where  security  is  required  the  omis-  300,  Bowen  v.   Shay,   105  111.   132,  he 

sion  to  take  it  does  not  vitiate  the  sale,  may  accept  cash.    Gwynn  v.  Dorsey,  4 

Lay  V.  Lawson,  23  Ala.  377.     But  it  Gill  &  J.  (Md.)  453. 


248  INDIANA    PROBATE    LAW.  §    1 73 

istrator  on  his  bond,  or  the  sale  may  be  set  aside;  and  if  the  pur- 
chaser had  knowledge  of  such  misapplication  of  the  proceeds  of 
his  purchase  by  the  executor  or  administrator  at  the  time,  the 
purchase  money  may  be  recovered  from  such  purchaser.-^ 

An  administrator  has  no  right  to  give  away  assets  of  the  estate, 
even  where  he  considers  them  worthless."* 

An  administrator  or  executor  will  not  be  allowed  to  purchase 
at  his  own  sale.  He  cannot  act  as  both  vendor  and  vendee.  Such 
purchase  may  be  questioned  by  the  heirs  or  others  interested  in 
the  estate."^ 

An  administrator  may  receive,  in  satisfaction  of  a  note  pay- 
able to  him  as  such  administrator,  an  account  due  the  maker  of 
the  note  from  a  third  party.  But  to  make  this  a  good  case  of 
novation  every  element  of  fraud  must  be  absent,  and  the  claim 
must  be  duly  assigned  to  the  administrator  with  the  assent  of  all 
the  parties  to  the  transaction.-" 

If  the  purchaser  is  also  a  creditor  of  the  estate  he  will  not  be 
permitted  to  deduct  from  the  purchase  price  of  property  bought 
the  amount  owing  to  him  from  the  estate." 

When  the  terms  of  sale  require  security  to  be  given,  and  none 
is  accepted  by  the  administrator,  he  will  be  held  personally  liable 
in  case  of  loss  to  the  estate.^^ 

But  if  he  accepts  security  which  he  knows  to  be  insufficient,  he 
will  still  be  held  liable,  but  is  perhaps  entitled  to  have  turned 

"^  Chandler  v.    Schoonover,   14  Ind.  "■  Chandler  v.   Schoonover,   14  Ind. 

324;  Bevis  v.  Heflin,  63  Ind.  129;  Nu-  324;   Pendarvis  v.  Wall,  14  La.  Ann. 

gent  V.  Laduke,  87  Ind.  482.  449. 

^Nugent  V.   Laduke,   87   Ind.   482;  ""  Parham   v.    Stith,    56   Miss.   465; 

Radovich,  Estate  of,  74  Cal.  536,   16  Citizens    St.   R.   Co.   v.   Robbins,    128 

Pac.  321,  5  Am.  St.  466.  Ind.  449,  26  N.  E.  116,  25  Am.  St.  ,445, 

-'Martin  v.  Wyncoop,  12  Ind.  260;  12  L.  R.  A.  498.     If  the  security  is 

Potter  V.  Smith,  36  Ind.  231.     Where  good   when   taken,   the    administrator 

he  makes  a  purchase  he  is  liable  for  will  not  be  personally  liable  for  the 

the  full  appraised  value.     Griswold  v.  after  insolvency  of  the  surety.     The 

Chandler,  5  N.  H.  492.    The  heirs  are  loss    is    on    the    estate.      Gordon    v. 

not  barred  by  acquiescence.     Boerum  Gibbs,    3    Sm.    &    M.     (Miss.)     473; 

V.  Schenck,  41  N.  Y.  182.  Davis  v.   Marcum,  4  Jones   Eq.    (N. 

=' Hancock  v.  Morgan,  34  Ind.  524;  Car.)  189. 
Morris  v.  Whitmore,  27  Ind.  418. 


§1/4  DISPOSITION    OF    PERSONAL    PROPERTY.  249 

over  to  him  the  notes  which  are  deemed  insufficient."^  If  the 
order  is  to  sell  at  private  sale,  on  short  time,  with  security,  and 
the  sale  is  made  on  long  time  with  no  security,  such  sale  is  void.^° 
If  the  security  taken  was  good  and  in  accordance  with  the 
statute  or  order  of  the  court  at  the  time  it  was  taken,  a  subse- 
quent failure  or  insolvency  of  the  sureties  will  not  render  the 
administrator  liable,  but  the  loss  will  fall  on  the  estate.  But  if 
he  should  neglect  to  take  proper  and  sufficient  security  the  rule  is 
different,  and  he  will  be  liable  upon  his  bond  for  the  purchase 
money.  The  omission  to  take  security,  however,  does  not  vitiate 
the  sale.^^ 

§  174.  Sale  bills  and  sale  clerk. — An  executor  or  adminis- 
trator, making  a  public  sale  of  personal  property,  shall  select  a 
clerk  to  keep  an  account  thereof,  who  shall  not  be  related  to  him 
or  interested  in  the  estate ;  he  shall  be  furnished,  by  the  executor 
or  administrator,  with  a  copy  of  the  inventor}^  of  the  property 
to  be  sold,  and  shall  keep  a  minute  of  each  article  sold,  the  num- 
ber thereof  on  the  inventory,  to  whom  and  for  how  much  sold, 
the  amount  of  cash  paid  by  each  purchaser,  and  names  of  sureties 
taken  on  notes;  he  shall,  on  completion  of  the  sale,  make  out,  on 
printed  blanks  prepared  for  that  purpose,  a  sale  bill  thereof, 
which  shall  specify  the  time,  place,  and  terms  of  sale,  the  differ- 
ent articles  sold,  the  prices  thereof,  amount  of  cash  paid,  and 
names  of  purchasers  and  sureties;  the  articles  shall  be  arranged 
in  the  sale  bill  in  numerical  order,  in  which  they  appear  in  the 
inventory,  and  opposite  each  article  on  the  margin  shall  be  noted 
the  number  it  bears  on  the  inventory;  if  any  of  the  articles  named 
in  the  inventory,  and  subject  to  sale,  remain  unsold,  the  clerk  of 
the  sale  shall  subjoin  to  the  sale  bill  a  list  thereof  in  the  order  in 
which  they  appear  on  the  inventory,  noting  in  the  proper  columns 
opposite  each  article  the  number  and  appraisement  thereof,  as 
shown  on  the  inventory;  the  sale  bill  and  subjoined  list  shall  be 

"-"  Lindley  v.  State,  116  Ind.  235,  18  ^  Citizens'  St.  R.  Co.  v.  Robbins,  128 

N.  E.  45;  Bowen  v.  Shay,  105  111.  132;  Ind.  449,  26  N.  E.  116,  25  Am.  St.  445, 

Hasbrouck   v.    Hasbrouck,   27   N.   Y.  12  L.  R.  A.  498. 

182.  ''  Lay  v.  Lawson,  23  Ala.  377. 


.250  INDIANA    PROBATE    LAW.  §    1 75 

correctly  added  up  and  the  footing  noted  on  each;  the  clerk  of 
the  sale  shall  thereupon  take  and  subscribe  an  oath,  to  be  indorsed 
upon  or  attached  to  the  sale  bill  and  subjoined  list,  if  any,  that 
they  contain  a  true  and  complete  account  of  the  sale  of  the  per- 
sonal property  of  the  deceased,  by  the  executor  or  administrator, 
and  of  the  articles  remaining  unsold,  as  shown  by  the  inventory; 
the  sale  bill  and  subjoined  list  shall  be  returned  to  the  clerk  of  the 
court  in  which  the  estate  is  pending,  whereupon  like  proceedings 
shall  be  had  as  upon  the  return  of  an  inventory  and  appraise- 
ment.^^ 

The  sale  bill  is  the  best  evidence  of  the  sale  whenever  it  be- 
comes necessary  for  an  executor  or  administrator  to  prove  a  sale 
of  his  decedent's  property  made  by  him,  and  such  sale  bill  is 
admissible  as  primary  evidence.  ^^ 

§  175.  Personal  property  at  private  sale. — For  the  pur- 
poses of  the  administration  the  law  makes  it  the  duty  of  an 
executor  or  administrator  to  convert  the  personal  property  of  his 
decedent  into  money  as  promptly  as  possible.  Immediately  after 
filing  his  inventory,  if  a  sale  is  not,  for  some  good  cause,  post- 
poned, he  must  sell  at  public  outcr}^  all  the  personal  estate  of  his 
decedent.  This  is  the  general  rule,  and  except  upon  an  order  of 
court  is  the  only  method  of  making  such  sale. 

We  have  a  statute,  however,  which  provides  that  "Whenever 
the  circuit  court,  or  the  judge  thereof  in  vacation,  shall  be  satisfied 
that  it  would  be  for  the  advantage  of  the  estate  of  any  decedent 
to  sell  any  part  of  the  personal  property  thereof  at  private  sale, 
such  court,  or  the  judge  thereof  in  vacation,  may  authorize  the 
administrator  or  executor  of  such  estate  to  thus  sell  the  same ;  but 
such  property  shall  in  no  case  be  sold  for  less  than  its  appraised 
value,  nor  shall  such  administrator  or  executor  become  the  pur- 
chaser thereof;  and  a  return  of  such  sale  shall  be  made  within 
the  time  prescribed  by  the  court,  or  the  judge  thereof  in  vacation, 
jiot  to  extend  beyond  three  months;  and  cash  or  notes  shall  be 
taken  for  the  purchase  money  as  in  case  of  public  sale  of  per- 
gonal property  of  the  deceased:    Provided,  however,  That  if  the 

^=  Burns'  R.  S.  1908,  §  2807.  ^^  Meek  v.  Spencer,  8  Ind.  118. 


§    1/6  DISPOSITION    OF    PERSONAL    PROPERTY.  25 1 

court,  or  the  judge  in  vacation,  shall  find,  upon  inquiry,  that  in 
any  particular  case  it  is  to  the  interest  of  the  estate  to  make  such 
sale  upon  credit  of  more  than  twelve  months,  the  court,  or  the 
judge  thereof  in  vacation,  shall  so  direct  and  order  and  fix  such 
terms  of  credit  as  the  court,  or  the  judge  thereof  in  vacation, 
shall  deem  fit  and  proper."^* 

This  section  of  the  statute  is  mandatory  in  its  provisions,  and 
an  executor  or  administrator  cannot  sell  the  personal  property 
of  his  decedent,  or  any  part  thereof,  at  private  sale  without 
having  been  authorized  so  to  do  by  an  order  of  some  court  having 
jurisdiction  of  the  administration  of  his  decedent's  estate;  and 
such  order  of  court  can  only  be  obtained  upon  a  proper  case 
being  made  by  the  verified  petition  of  the  executor  or  adminis- 
trator of  the  estate  and  such  other  proof  as  may  be  required, 
showing  that  it  would  be  of  advantage  to  the  estate  that  the  per- 
sonal property  mentioned  in  the  petition  should  be  sold  at  private 
sale.^^  And  after  such  order  of  sale  is  obtained,  the  executor  or 
administrator  must  have  the  property  so  ordered  sold  duly  ap- 
praised, and  if,  after  such  sale  is  made,  it  did  not  appear  that  the 
property  had  been  so  appraised,  the  executor  or  administrator 
cannot  maintain  an  action  for  the  price  of  such  property.^'^ 

§  176.  Such  sale  must  comply  with  the  order. — If  there  is 
not  a  substantial  compliance  with  the  order  of  the  court  author- 
izing a  sale  of  property  at  private  sale,  such  sale  will  be  held 
void." 

=*  Burns'  R.  S.  1908,  §  2806.  ""  Citizens'  St.  R.  Co.  v.  Robbins,  128 

'nVeyer  v.   Second  Nat.   Bank,  57  Ind.  449,  26  N.  E.  116,  25  Am.  St.  445, 

Ind.  198.  12  L.  R.  A.  498.     Where  an  order  to 

^"Ramey  v.  McCain,  51  Ind.  496.    In  sell  stock  at  private  sale  required  the 

cases  of  private  sales,  where  the  order  administratrix    to    make    the    sale    on 

of  the  court  does  not  require  a  con-  good  security,  and  the  sale  was  made 

firmation,  if  the  sale  is  made  in  sub-  upon  the  individual  note  of  the  pur- 

stantial  compliance  with  the  order  of  chaser  and  without  any  security  and 

the  court,  the  title  passes  to  the  pur-  on  a  credit  of  ten  years,  the  statute 

chaser  upon  his  compliance  with  the  authorizing   a   credit   of    only   twelve 

terms  of  the  sale.    Citizens'  St.  R.  Co.  months,  the  sale  was  void  and  vested 

v.    Robbins.    128   Ind.   449,  .26   N.    E.  no  title. 
116,  25  Am.  St.  445,  12  L.  R.  A,  498. 


252  INDIANA    PROBATE    LAW.  §    1 76 

The  estates  of  the  dead  are  a  trust  to  the  courts,  and  every 
legal  safeguard  to  their  proper  administration  ought  to  be  faith- 
fully sustained.  Where  one  assumes  to  dispose  of  the  property 
of  another,  whether  that  other  is  living  or  dead,  the  acting  party 
should  always  be  required  to  produce  and  prove  his  authority; 
and  when  a  person  with  a  knowledge  of  the  law,  which  all  are 
presumed  to  have,  purchases  personal  property  belonging  to  a 
decedent's  estate,  from  one  claiming  to  be  the  executor  or  admin- 
istrator of  the  estate  at  private  sale,  he  is  bound  to  know  that 
such  sale  has  been  authorized  by  an  order  of  the  proper  court, 
and  the  property  duly  appraised  prior  to  such  sale,  or  he  buys  at 
his  peril.^® 

Personal  property  once  sold  by  an  executor  or  administrator  at 
public  sale,  upon  the  failure  of  the  purchaser  to  comply  with  his 
bid,  may  be  ordered  sold  at  private  sale,  and  at  such  sale  if  the 
property  sell  for  a  less  sum  than  at  the  former  sale,  the  original 
purchaser  is  liable  to  the  executor  or  administrator  for  the  differ- 
ence between  the  amount  of  his  bid  and  the  sum  which  the  prop- 
erty brought  at  private  sale.^** 

Unless  so  required  by  the  court's  order,  it  is  not  necessary  to 
the  vesting  of  the  title  that  such  sale  should  be  reported  and  con- 
firmed.^** But  the  rule  is  otherwise  if  the  order  of  court  requires 
such  sale  to  be  reported  to  court.*^ 

However,  if  a  sale  is  made,  not  in  compliance  with  the  order  of 
the  court,  but  is  reported  to  and  confirmed  by  the  court,  this  will 
cure  any  error  or  defect.*^ 

In  some  of  the  states  a  distinction  is  made  between  the  right  to  sell 

''Weyer  v.    Second  Nat.   Bank,  57  tificate  to  the  purchaser,  without  in- 

Ind.  198.  quiring  into  the  validity  of  the  sale,  it 

''  Meek  v.  Spencer,  8  Ind.  118.  is  liable  to  the  estate  for  any  loss  oc- 

*°  Citizens'  St.  R.  Co.  v.  Robbins,  128  casioned  thereby.    It  is  bound  to  know 

Ind.  449,  26  N.  E.  116,  25  Am.  St.  445,  that  the  sale  has  been  made  in  compli- 

12  L.  R.  A.  498.  ance  with  the  terms  of  the  order.    Nu- 

'^  Williams  v.  Perrin,  73  Ind.  57.    In  gent  v.  Laduke,  87  Ind.  482 ;  Citizens' 

such  case,  if  the  corporation,  with  no-  St.  R.  Co.  v.  Robbins,  128  Ind.  449,  26 

tice  that  the  stock  belonged  to  the  es-  N.  E.  116,  25  Am.  St.  445,  12  L.  R.  A. 

tate  of  the  decedent,  and  with  notice  498. 

of  the  order  of  sale,  cancels  the  cer-        *=  Jacobs'  Appeal,  23  Pa.  St.  477. 
tificates  of  stock,  and  issues  a  new  cer- 


8    177  DISPOSITION    OF    PERSONAL    PROPERTY.  253 

the  tangible  personal  property  o£  a  decedent  and  that  species 
known  as  choses  in  action,  but  in  this  state  notes,  book  accounts, 
contracts,  leases,  bank  and  other  corporation  stock  may  be  sold 
as  any  other  personal  property  of  the  decedent  is  sold,  either  at 
public  auction  or  at  private  sale/^ 

§  177.  Report  of  private  sale. — Where,  by  order  of  the 
court,  a  sale  of  personal  property  of  a  decedent's  estate  is  to  be 
reported  to  such  court  for  confirmation,  such  sale  must  be  re- 
ported and  confirmed  before  the  title  to  the  property  will  pass  to 
the  purchaser.'** 

But  where  the  order  of  the  court  does  not  require  such  sale  to 
be  reported  and  confiimed,  if  the  sale  is  made  in  substantial  com- 
pliance with  the  court's  order,  the  title  to  the  property  will  pass 
to  the  purchaser  upon  his  compliance  with  the  terms  of  the  sale 
whether  such  sale  is  reported  and  confirmed  or  not."*^  However, 
if  there  should  be  any  material  deviation  from  the  order  of  sale 
made  by  the  court,  no  title  will  pass  until  such  sale  is  reported 
and  confirmed  by  the  court.*'' 

Where  an  executor  or  administrator,  in  making  a  sale  of  his 
decedent's  personal  property  at  private  sale,  fails,  in  any  material 
respect,  to  comply  with  the  terms  and  conditions  of  such  sale  as 
imposed  in  the  order  of  court  authorizing  it,  the  sale  will  be  void 
and  no  title  will  vest  in  the  purchaser.  It  is  the  purchaser's  duty 
to  know  that  the  sale  has  been  made  in  substantial  compliance 
with  the  court's  order.*' 

^^  Thomas    v.    Reister,    3    Ind.    369;  by  the  court."    Citizens'  St.  R.  Co.  v. 

Ramey  v.  McCain,  51  Ind.  496;  Ham-  Robbins.   128  Ind.  449,  26  N.  E.  116, 

rick  V.  Craven,  39  Ind.  241 ;  Weyer  v.  25  Am.  St.  445,  12  L.  R.  A.  498. 
Second  Nat.  Bank,  57  Ind.  198 ;  Rey-        "  Citizens'  St.  R.  Co.  v.  Robbins,  128 

nolds  V.  Linard,  95  Ind.  48;  Citizens'  Ind.  449,  26  N.  E.  116,  25  Am.  St.  445; 

St.  R.  Co.  V.  Robbins,  128  Ind.  449,  26  Hobson  v.  Ewan,  62  111.  146;  Moffitt 

N.  E.  116,  25  Am.  St.  445,  12  L.  R.  A.  v.  Moffitt,  69  111.  641. 
498.  *'  Citizens'  St.  R.  Co.  v.  Robbins,  128 

"Williams  v.  Perrin,  73  Ind.  57.  "It  Ind.  449,  26  N.  E.  116,  25  Am.  St.  445, 

is  also  probably  true  that  where  there  12  L.  R.  A.  498. 

is  any  material  deviation  from  the  or-        *'  Citizens'  St.  R.  Co.  v.  Robbins,  128 

der  to  sell,  no  title  would  pass  until  Ind.  449,  26  N.  E.  116,  25  Am.  St.  445, 

such  sale  was  reported  and  confirmed  12  L.  R.  A.  498. 


254 


INDIANA    PROBATE    LAW. 


§   i/S 


The  purchaser  at  a  sale  made  by  an  executor  or  administrator 
acquires  only  such  title  to  the  property  purchased  as  the  decedent 
had  when  living.  There  is  no  implied  warranty  of  title/^  But 
if  the  executor  or  administrator  should  expressly  warrant  the 
title  to  such  property,  although  he  cannot  bind  the  estate  by  so 
doing,  he  will  render  himself  personally  liable  for  such  war- 
ranty/"* An  estate  cannot  be  held  liable  for  the  torts  of  an  ad- 
ministrator or  executor ;  neither  is  it  liable  for  his  representations, 
warranties,  or  statements  in  respect  to  the  title,  condition,  or 
quality  of  property  sold  by  him.^" 

The  application  by  an  administrator  of  money  belonging  to  the 
estate,  in  payment  of  his  individual  note,  does  not  operate  as  a 
payment  of  the  note.  The  money  belongs  to  the  estate,  and  such 
payment  does  not  transfer  the  title  to  it,  nor  does  it  extinguish 
the  note.^^ 


178.    When  sale  may  be  vacated. — The  provision  in  secti 


ion 


2875,  Burns'  R.  S.  1908,  that  a  sale  of  a  decedent's  real  estate  by 


*^  Weyer  v.  Second  Nat.  Bank,  57 
Ind.  198;  Bingham  v.  Maxcy,  15  111. 
295;  Cogan  v.  Frisby,  36  Miss.  178. 
He  takes  the  title  at  his  own  risk  and 
is  not  released  from  paying  the  pur- 
chase money  by  reason  of  a  defect  in 
the  title.  Cogan  v.  Frisby,  36  IMiss. 
178.  But  if  there  is  an  entire  failure 
of  title,  in  the  purchaser,  the  rule  is 
somewhat  different.  Mockbee  v.  Gard- 
ner, 2  H.  &  G.   (Md.)   176. 

"  Sumner  v.  Williams,  8  Mass.  162, 
5  Am.  Dec.  83;  Huffman  v.  Hendry,  9 
Ind.  App.  324,  36  N.  E.  727,  53  Am.  St. 
351;  Moody  v.  Shaw,  85  Ind.  88; 
Buckels  V.  Cunningham,  6  Sm.  &  M. 
(Miss.)  358;  Lynch  v.  Baxter,  4  Tex. 
431,  51  Am.  Dec.  735.  In  Huffman  v. 
Hendry,  9  Ind.  App.  324,  36  N.  E.  727, 
53  Am.  St.  351,  it  is  said:  "The  es- 
tate is  not  liable  for  the  torts  of  the 
administratrix.  Neither  is  the  estate 
liable  for  her  representations,  warran- 
ties, or  statements  in  respect  to  the 
condition  or  quality  of  said  cows.  She 


may  be  liable  personally  for  any  dam- 
ages appellee  may  have  sustained  in 
reliance  on  her  representations,  war- 
ranties, or  statements,  but  there  can 
be  no  recovery  against  the  estate  on 
account  thereof." 

'"Rose  V.  Cash,  58  Ind.  278;  Holder- 
baugh  V.  Turpin,  75  Ind.  84,  39  Am. 
Rep.  124;  Huffman  v.  Hendry,  9  Ind. 
App.  324,  36  N.  E.  727,  53  Am.  St.  351. 
In  Riley  v.  Kepler,  94  Ind.  308,  it  is 
said :  "If  he  made  false  representa- 
tions in  the  sale,  that  was  his  individ- 
ual tort,  for  which  he  alone  could  be 
held  in|lividually  liable." 

"'  Fleece  v.  O'Rear,  83  Ind.  200.  He 
cannot  mortgage  property  of  the  estate 
to  pay  his  own  debt.  Clark  v.  Coe,  52 
Hun  (N.  Y.)  379,  5  N.  Y.  S.  243- 
Williamson  v.  Branch  Bank,  7  Ala, 
906,  42  Am.  Dec.  617;  Nugent  v.  La- 
duke,  87  Ind.  482.  Nor  give  it  away, 
although  he  may  consider  it  worthless. 
Radovich,  Estate  of,  74  Cal.  536,  16 
Pac.  321,  5  Am.  St.  466. 


179  DISPOSITION    OF    PERSONAL    PROPERTY. 


^DD 


an  executor  or  administrator  may  be  set  aside  by  the  court,  and  a 
resale  of  the  land  ordered  whenever,  before  the  report  and  con- 
firmation of  such  sale,  it  is  shown  to  the  court  that  a  sum  exceed- 
ing the  sum  bid  by  at  least  ten  per  cent.,  exclusive  of  costs  of 
such  sale,  can  be  obtained  therefor,  is  held  to  apply  by  implica- 
tion to  sales  of  decedent's  personal  property  by  his  executor  or 
administrator ;  and  the  court  says :  "There  can  be  no  doubt  that, 
under  its  general  jurisdiction  over  the  settlement  of  the  estates 
of  decedents,  the  court  has  the  power  to,  and  in  the  exercise  of  a 
sound  discretion  may,  refuse  to  confirm  a  private  sale  of  per- 
sonalty, if  it  appear  that  a  substantial  advance  can  be  had  upon 
the  price  reported. "^^ 

The  sale  may  be  set  aside  where  there  has  been  fraud  and  col- 
lusion in  keeping  down  or  preventing  bids  or  competition  at  the 
sale."  If  a  sale  is  vacated  the  purchase  money,  if  paid,  should 
be  returned.^* 

§  179.  Sale  of  corporation  stock. — Whenever  any  portion 
of  the  estate  of  any  person  dying  intestate  shall  consist  of  stock- 
in  a  corporation  or  corporations,  and  when  any  person  shall  die 
testate  owning  such  stock  but  making  no  disposition  thereof  in 
his  will,  the  same  shall  not  be  sold  except  under  the  direction  of 
the  proper  court;  and,  in  the  distribution  of  the  estate  among  his 
heirs  or  legatees,  such  stock  shall  be  distributed  and  transferred 
to  them  under  the  direction  of  the  court. ^^ 

The  statute  of  this  state  relating  to  the  negotiation  of  promis- 
sory notes,  etc.,  by  indorsement,  broad  and  comprehensive  as  are 
its  terms,  has  no  application  whatever  to  certificates  of  corpora- 
tion stock,  nor  have  we  any  statutory  provision  which  makes  such 
certificates  negotiable  by  assignment  or  indorsement  thereon,  so 
as  to  vest  any  title  to  the  shares  of  stock  therein  mentioned  in  the 
assignee  or  indorsee  of  such  certificate.  Such  shares  of  stock 
are  transferable  only  on  the  books  of  the  corporation. ^"^ 

"=  Williams  v.  Perrin,  73  Ind.  57.  ==  Burns'  R.  S.  1908,  §  2796. 

'"  Jones  V.  French,  92  Ind.  138.  ="  Weyer  v.   Second   Nat.   Bank,  57 

"  Shepherd  v.  Fisher,  17  Ind.  229.  Ind.  198;  Citizens'  St.  R.  Co.  v.  Rob- 


256  INDIANA  PROBATE  LAW.  §  180 

Where  a  person  procures  another  to  become  a  surety  for  him 
by  promising  to  transfer  to  such  surety  certain  shares  of  bank 
stock  as  collateral  security,  and  dies  before  such  transfer  is  made, 
the  surety  will  be  entitled  to  have  the  stock  applied  to  the  pay- 
ment of  the  debt  for  which  he  is  surety,  and  until  this  particular 
debt  is  paid  such  stock  does  not  become  general  assets  of  the 
estate,  even  though  the  estate  prove  insolvent.^' 

So  long  as  corporation  stock  remains  unsold  in  the  hands  of  an 
executor  or  administrator,  he  has  the  right  and  authority  to  vote 
it  at  corporation  meetings,  and  that,  too,  whether  such  stock  is 
held  in  his  own  right  or  as  trustee,  or  whether  transfer  of  it 
has  been  made  on  the  corporation's  books  or  not.°* 

§  180.  Sale  of  written  contracts. — Written  contracts,  ex- 
cept for  the  purchase  of  lands  in  tlie  lifetime  of  the  deceased, 
executed  or  transferred  to  him,  obligating  the  person  executing  to 
the  performance  of  anything  other  than  the  payment  of  money, 
may  be  sold  as  personal  estate  of  the  deceased. ^'^  When  any  such 
contract  is  sold,  the  executor  or  administrator  shall  assign  and 
deliver  the  same  to  the  purchaser  thereof  without  recourse.^" 
Such  assignment  and  delivery  shall  invest  all  the  rights  to  enforce 
or  dispose  of  such  contract  or  agreement  in  such  purchaser 
which  would  have  vested  in  him  if  the  deceased  had  made  such 
assignment.®^ 

A  lease  is  such  contract  as  may  be  sold  and  transferred  by  as- 
signment; but  such  assignment,  when  made  by  the  executor  or 
administrator  of  a  deceased  tenant,  will  not  release  the  estate 
from  the  payment  of  the  rent  accruing  thereon  subsequent  to  the 
death  of  the  tenant. *'- 

The  title  to  promissory  notes  and  bills  of  exchange,  due  and 

bins,   128  Ind.  449,  26  X.  E.   116,  25  =' AlcCoy  v.  Wilson,  58  Ind.  447. 

Am.  St.  445,  12  L.  R.  A.  498.    A  pur-  ^^  .Market  St.  R.  Co.  v.  Hellman,  109 

chaser  of  such  new  certificate,  in  good  Cal.  571,  42  Pac.  225. 

faith,  and  without  notice  of  any  ille-  ='  Burns'  R.  S.  1908,  §  2798. 

gality  in  the  surrender  and  cancella-  ""  Burns'  R.  S.  1908,  §  2799. 

tion  of  the  original  stock,  is  not  lia-  "^  Burns'  R.  S.  1908,  §  2800. 

ble    to    the    estate,    its    remedy   being  "  Carley  v.  Lewis,  24  Ind.  23. 
against  the  corporation. 


§    l8l  DISPOSITION    OF    PERSONAL    PROPERTY.  257 

payable  to  a  decedent,  may  be  assigned  by  his  executor  or  admin- 
istrator, so  as  to  vest  the  title  thereto  in  the  assignee,  by  the  in- 
dorsement or  assignment  of  such  executor  or  administrator,®^ 
But  such  transfer  or  sale  when  made  by  an  executor  or  admin- 
istrator without  consideration,  or  for  his  own  individual  benefit, 
the  assignee  having  notice,  conveys  no  title,  but  is  a  devastavit  of 
the  estate,  which  renders  not  only  the  executor  or  administrator, 
and  the  assignee,  but  any  one,  who,  with  notice,  participated  in 
the  devastavit,  liable  for  the  full  amount  of  the  note,  etc.,  trans- 
ferred, to  any  creditor  or  other  person  interested  in  the  estate 
who  is  injured  thereby."*  But  these  sections  of  the  statute  under 
consideration  provide  only  for  the  sale  and  assignment  of  such 
contracts  as  specify  some  other  consideration  besides  the  pay- 
ment of  money.  This  would  not  include  promissory  notes  and 
bills  of  exchange.  The  right  of  an  executor  or  administrator  to 
sell,  assign  and  transfer  such  instruments  is  a  common-law  right, 
and  needs  no  statutory  enactment  for  its  exercise. 

§  181,  Sale  of  contracts  for  land. — If  any  such  contract 
was  for  the  purchase  of  land,  and  there  are  payments  due  or  to 
become  due  thereon,  and  the  court  is  satisfied,  upon  such  executor 
or  administrator  filing  his  petition  therefor,  verified  by  affidavit, 
that  it  would  be  more  to  the  advantage  of  the  persons  interested 
in  such  estate  that  the  interests  of  the  deceased  therein  under  such 
contract  should  be  sold  than  that  the  assets  in  the  hands  of  the 
executor  or  administrator  should  be  applied  to  the  payment  of 
such  purchase-money,  or  that  the  assets  of  the  estate  are  insuffi- 
cient to  pay  the  same,  the  court  shall  order  the  executor  or  ad- 
ministrator to  dispose  of  the  interest  of  the  deceased  therein  at 
public  or  private  sale.*^ 

If  such  sale  be  ordered  to  be  made  by  public  outcry,  notice 
thereof  shall  be  given,  as  in  case  of  public  sale  of  the  personal 

"Thomas   v.    Reister,   3   Ind.   369;  "Rogers    v.    Zook,    86    Ind.    237; 

Thomasson   v.    Brown,   43   Ind.   203;  Fleece  v.  Jones,  71  Ind.  340;  Thomas- 

Hamrick    v.    Craven,    39    Ind.    241 ;  son  v.  Brown,  43  Ind.  203. 

Weyer  v.  Second  Nat.  Bank,  57  Ind.  •"  Burns'  R.  S.  1908,  §  2801 ;  Sowle 

198;  Krutz  v.  Stewart,  Id  Ind.  9;  Lat-  v.  Holdridge,  63  Ind.  213. 
ta  V.  Miller,  109  Ind.  302,  10  N.  E.  100. 

17 — Pro.  Law. 


258  INDIANA    PROBATE    LAW.  §    1 82 

property;  but  if  it  be  ordered  to  be  private,  no  such  notice  shall 
be  necessary;  and  a  return  of  such  sale,  whether  public  or  private, 
shall  be  made  at  the  next  term  of  such  court,  when  it  shall  be 
confirmed,  unless  it  shall  appear  to  have  been  fraudulently  made, 
or  that  a  sum  exceeding  ten  per  cent,  on  the  amount  bid  can  be 
obtained,  in  which  case  it  shall  be  vacated  and  a  new  sale  or- 
dered.*^*' 

§  182.  Same — Assignment,  sale  of  part,  bond. — When  such 
sale  shall  be  confirmed,  the  court  shall  direct  the  executor  or  ad- 
ministrator to  execute  an  assignment  of  such  contract  to  the  pur- 
chaser, which  assignment  shall  vest  in  such  purchaser  all  the  title 
of  the  persons  having  the  right  to  the  interest  of  the  deceased  in 
the  land  thus  sold,  at  the  time  of  the  sale;  and  such  purchaser 
shall  have  the  same  remedies  against  the  vendor  of  such  land  as 
the  deceased  would  have  had  if  he  were  living."  If,  in  the  opin- 
ion of  the  court,  a  part  of  such  land  may  be  sold  advantageously 
to  the  estate  of  the  deceased,  so  that  the  monevs  arising  from 
such  part  will  pay  the  amount  of  the  purchase-money  due  or  to 
become  due  therefor,  such  court  may  order  a  part  only  of  such 
land  to  be  sold ;  and,  in  that  case,  the  purchaser  need  not  execute 
bond  as  herein  required.®^ 

Such  sale  shall  be  made  subject  to  all  payments  due  or  to  be- 
come due,  and  shall  not  be  confirmed  by  the  court  until  the  pur- 
chaser shall  execute  a  bond  to  such  executor  or  administrator  for 
his  indemnity  and  the  indemnity  of  the  persons  entitled  to  the 
interest  of  the  deceased  in  such  land,  in  a  penalty  of  double  the 
whole  amount  of  such  payments,  with  condition  that  such  pur- 
chaser will  make  all  payments  subject  to  which  such  sale  has  been 
made,  and  will  fully  indemnify  the  executors  and  administrators 
of  the  deceased,  and  the  persons  so  entitled,  against  all  demands 
by  reason  of  any  covenant  or  agreement  contained  in  such  con- 
tract so  sold,  or  by  reason  of  any  other  liability  of  the  deceased 
on  account  of  the  purchase  of  such  land,  and  against  all  the  cove- 

*«  Burns'  R.  S.  1908,  §  2802.  ■     "'  Burns'  R.  S.  1908,  §  2805. 

•"  Burns'  R.  S.  1908,  §  2804. 


§    183  DISPOSITION    OF    PERSONAL    PROPERTY.  259 

nants  and  agreements  of  the  deceased  with  the  vendor  of  such 
land  in  relation  thereto.*^'' 

§  183.  Disposition  of  worthless  sale  notes. — \\'here  an  ex- 
ecutor or  administrator  shall  take  a  note  or  obligation  of  a  pur- 
chaser of  the  personal  estate  of  the  deceased,  with  surety  for  the 
payment  of  the  purchase-money,  and  the  persons  executing  such 
note  or  obligation  become  insolvent  and  unable  to  pay  the  same 
or  any  part  thereof  before  the  same  falls  due  or  can  be  collected, 
the  circuit  court  may  allow  such  executor  or  administrator  a 
credit  for  the  amount  thereof  or  so  much  as  may  remain  unpaid, 
if  he  shall  show  to  the  satisfaction  of  the  court  that  he  used  due 
care  and  caution  in  taking  such  note  or  obligation  and  that  the 
surety  or  sureties  were  solvent  at  the  time  of  executing  the  same ; 
also  that  due  diligence  has  been  used  to  collect  the  amount  due 
thereon.  Such  claim  shall  be  filed  in  court,  for  the  use  of  the 
creditors,  heirs,  and  legatees  of  the  deceased.^'' 

This  statute  throws  upon  the  executor  or  administrator  the 
burden  of  showing  that  he  exercised  due  care  and  caution ;  that 
he  was  careful  and  diligent  in  accepting  the  obligations,  other- 
wise he  will  not  be  entitled  to  credit  for  the  note  taken,  but  will 
be  liable  for  both  the  principal  and  the  interest  thereon.^^ 

§  184.  Same — Who  may  sue,  etc. — Any  creditor  or  legatee 
whose  debt  or  legacy,  in  whole  or  in  part,  remains  unpaid,  and 
any  person  entitled  to  share  in  the  distribution  of  the  estate,  may 
sue  for  and  recover  such  claim  thus  filed.'" 

The  amount  thereof,  when  collected,  shall  be  paid  into  the 
proper  circuit  court,  and  shall  be  applied,  first,  to  the  payment  of 
debts;  secondly,  to  the  payment  of  legacies;  thirdly,  to  be  dis- 
tributed to  those  entitled  to  distribution,  according  to  their  re- 
spective rights. '^^ 

The  person  collecting  such  claim  shall  be  entitled  to  retain 
therefrom  all  necessary  costs  and  such  sum  as  the  court  shall 

^  Burns'  R.  S.  1908,  §  2803.  '=  Burns'  R.  S.  1908,  §  2822. 

'"  Burns'  R.  S.  1908,  §  2821.  ~'  Burns'  R.  S.  1908,  §  2823. 

"Lindley  v.  State,  116  Ind.  235,  18 

N.  E.  45. 


260  INDIANA    PROBATE    LAW.  §    1 84 

adjudge  a  reasonable  compensation  for  his  services  in  collecting 
the  same/* 

Any  such  person  entitled  to  sue  thereon  may  bring  and  main- 
tain suit  for  the  recovery  of  such  debt  or  claim  in  the  name  of  the 
executor  or  administrator  of  the  estate  of  the  deceased,  or,  other- 
wise, for  his  own  use;  but  such  executor  or  administrator  shall 
not  be  liable  for  costs  in  any  such  suit,  out  of  his  own  property 
nor  the  property  of  the  deceased." 

Before  any  person  shall  receive  from  the  clerk,  having  the 
same  in  custody,  the  note,  bond,  obligation,  security,  or  account 
on  which  such  claim  is  founded,  for  the  purpose  of  commencing 
suit  thereon,  he  shall  execute  bond,  payable  to  the  state  of  In- 
diana, in  a  penalty  of  double  the  amount  of  such  claim,  with 
sufficient  approved  sureties,  with  condition  that  he  will  faithfully 
account  for  and  pay  into  court  all  sums  by  him  collected  on  such 
claims.^" 

The  person  suing  on  such  claim  may  be  cited  to  render  an  ac- 
count in  the  proper  circuit  court;  and  if  he  fail  to  account  or  to 
pay  over  any  sums  of  money  collected  thereon,  he  and  his  sure- 
ties may  be  sued  on  his  bond,  at  the  instance  of  any  creditor  or 
other  person,  for  his  proportion  of  the  amount  recovered  on  any 
such  debt  or  claim ;  and  the  action  on  such  bond  shall  be  instituted 
and  judgment  recovered  as  in  actions  upon  the  bonds  of  executors 
or  administrators.^' 

In  construing  all  these  statutes  together  the  court  in  Postal  v. 
Kreps,  23  Ind.  App.  loi,  54  N.  E.  816,  holds  that  it  is  evidently 
intended  that  such  a  suit  may  be  brought  while  the  estate  is  pend- 
ing, or  after  it  has  been  finally  settled  and  the  executor  or  admin- 
istrator discharged.  But  if  it  is  brought  before  final  settlement 
suit  should  be  in  the  name  of  the  executor  or  administrator,  and  in 
that  case  the  complaint  should  show  that  the  creditor  had  filed  his 
claim  against  the  estate.  Where  the  estate  has  been  finally  settled 
any  creditor  whose  debt  in  whole  or  in  part  remains  unpaid  may 
sue  in  his  own  name,  but  his  complaint  must  show  that  his  claim 

'*  Burns'  R.  S.  1908,  §  2824.  ''  Burns'  R.  S.  1908,  §  2825. 

"  Burns'  R.  S.  1908,  §  2826.  "  Burns'  R.  S.  1908,  §  2827. 


§    185  DISPOSITION    OF    PERSONAL    PROPERTY.  261 

had  been  administered  upon.  If  such  claim  had  never  been  filed 
and  brought  to  the  attention  of  the  executor  or  administrator,  he 
would  not  be  entitled  to  the  remedy  provided  by  these  statutes. 

§  185.  Disposition  of  desperate  debts. — Where  any  debtor 
of  a  deceased  person  shall  be  unable  to  pay  the  whole  or  any 
part  of  the  demand  or  claim  of  such  person,  or  is  insolvent  or 
in  doubtful  circumstances,  or  where  any  legal  or  equitable  de- 
fense is  alleged  against  such  debt  or  claim,  the  executor  or  admin- 
istrator, with  the  approbation  of  the  proper  circuit  court  or  judge 
thereof  in  vacation,  may  compound  with  such  debtor  and  give 
him  a  discharge,  upon  receiving  the  avails  agreed  upon  in  such 
compounding,  or  upon  the  payment  of  the  same  being  sufficiently 
secured.'^ 

Whenever  any  debt  or  demand  due  the  decedent  is  desperate 
on  account  of  the  insolvency  or  doubtful  circumstances  of  the 
debtor,  or  any  legal  or  equitable  defense  is  alleged  against  the 
same,  on  account  of  which  it  may  not  be  deemed  expedient  to 
prosecute  an  action  against  such  debtor;  or  whenever,  by  reason 
of  the  remoteness  of  the  place  of  residence  of  any  debtor,  or  the 
ignorance  of  the  executor  or  administrator  of  his  place  of  resi- 
dence, and  the  smallness  of  such  debt  or  claim,  and  the  uncer- 
tainty of  collecting  the  amount  thereof,  and  that  the  attempt  to 
collect  the  same  would  tend  to  injure  and  prejudice  such  estate, 
the  executor  or  administrator,  with  the  approbation  of  the  cir- 
cuit court,  may  file  the  same  in  said  court  for  the  benefit  of  the 
creditors,  heirs  and  legatees  of  such  deceased. '^^ 

And,  as  in  case  of  worthless  sale  notes  so  filed  in  court,  the 
executor  or  administrator  may  be  allowed  credit  on  his  account 
with  such  estate  the  full  amount  of  such  debt. 

The  creditors,  heirs,  legatees  or  others  interested  in  the  estate, 
can  accept  and  collect  such  debts  so  filed  under  like  conditions 
and  restrictions  as  in  case  of  worthless  sale  notes. 

''  Burns'  R.  S.  1908,  §  2819.  ""  Burns'  R.  S.  1908,  §  2820. 


262  INDIANA    PROBATE    LAW.  §    1 86 

Such  claims,  debts,  etc.,  may  be  sold  or  compounded  by  an 
executor  or  administrator  when  so  ordered  by  the  court.'^*' 

§  186.  Collection  of  debts  and  demands. — Every  executor 
and  administrator  shall  proceed  with  diligence  to  collect  the 
debts  and  demands  due  the  estate  of  the  deceased.  Where  the 
interests  of  the  estate  may  be  promoted  thereby,  the  court,  or 
judge  thereof  in  vacation,  may  order  the  executor  or  adminis- 
trator to  compound  debts,  and  to  buy  in  property,  either  per- 
sonal or  real,  at  sales  under  execution  in  favor  of  the  estate. 
The  executor  or  administrator  shall  make  report  to  the  court  of 
all  such  purchases,  under  oath.  If  personal  property  be  bought 
in,  it  shall  be  sold,  and  return  thereof  made,  as  in  case  of  sales 
of  the  personal  estate  of  the  decedent.  If  real  estate  be  bought 
in,  the  certificate  of  purchase  or  sheriff's  deed  shall  be  made  to 
the  executor  or  administrator  in  trust,  for  the  persons  interested 
in  the  estate.  If  real  estate  be  bought  in,  and  it  shall  become 
necessary  to  sell  the  same  for  the  payment  of  debts,  the  real 
estate,  or  the  certificate  of  purchase  thereof,  may,  upon  the  ex 
parte  petition  of  the  executor  or  administrator,  and  without  no- 
tice thereof  or  additional  bond,  be  ordered  sold  upon  such  temis 
and  after  such  notice  as  the  court  may  direct.  Such  real  estate 
or  certificate  of  purchase  shall  be  sold  to  the  highest  bidder;  and 
upon  report  and  confirmation  of  the  sale,  the  court  shall  order  an 
assignment  of  the  certificate  of  purchase  or  the  execution  of  a 
deed  to  the  purchaser.  If  it  be  shown  to  the  court  by  the  exec- 
utor or  administrator  that  the  personal  assets  of  the  estate  in  his 
hands  are  amply  sufficient,  without  making  such  sale,  to  pay  the 
debts  and  liabilities  of  such  estate,  the  court  may  order  him  to 
assign  the  certificate  or  convey  the  land,  as  the  case  may  be,  to 
the  heirs,  devisees,  and  legatees  of  the  deceased,  to  be  held  by 
them  in  the  same  proportions  in  which  the  personal  estate  of  the 
decedent  would  be  distributed  to  them,  respectively,  at  law  or 
under  the  will  of  the  deceased.  When  real  estate  shall  be  bought 
in  as  aforesaid,   the   executor  or  administrator  shall  be  liable 

'"Reynolds   v.    Linard.  95    Ind.   48;     Postal  v.  Kreps,  23  Ind.  App.  101,  54 

N.  E.  816. 


§    187  DISPOSITION    OF    PERSONAL    PROPERTY.  263 

therefor,  and  for  the  proceeds  thereof,  in  hke  manner  as  if  the 
same  had  been  personal  property.-^ 

§  187.  Persons  concealing  goods. — Upon  complaint  made 
to  the  court  by  any  executor  or  administrator,  under  oath,  against 
any  one  suspected  and  believed  to  have  concealed,  converted,  or 
carried  away  any  of  the  goods  of  the  deceased,  such  court  may 
cite  such  person  to  appear  before  it  and  to  be  examined,  on  oath, 
upon  the  matter  of  such  complaint ;  and  if  the  person  thus  cited 
shall  refuse  to  appear  and  to  answer  such  interrogatories  as  shall 
be  lawfully  propounded  to  him,  the  court  may  commit  such  per- 
son, upon  order  of  attachment,  to  the  jail  of  the  county,  until 
the  interrogatories  propounded  by  the  court  shall  be  answered 
on  oath ;  and  all  such  interrogatories,  and  the  answers  thereto, 
shall  be  in  writing,  and  signed  by  the  party  examined,  and  filed 
in  such  court.®' 

§  188.  Executor,  etc.,  may  administer  oaths. — It  is  pro- 
vided by  statute  that :  "Ever}-  executor  and  administrator  is 
hereby  invested  with  authority,  in  the  administration  of  the  estate 
committed  to  his  charge,  to  administer  the  oaths  and  take  and 
certify  the  affidavits  by  this  act  required  to  be  made  by  the  ap- 
praisers of  the  personal  and  real  estate  of  the  deceased,  the  clerk 
of  the  sale  of  such  personal  estate,  and  persons  filing  claims 
against  the  estate.  ^^ 

^^  Burns'  R.  S.  1908,  i  2817.  ''  Burns'  R.  S.  1908,  §  2987. 

^  Burns'  R.  S.  1908,  §  2818. 


CHAPTER    X. 


DISPOSITION   OF  REAL   PROPERTY. 


§  189.  Real  estate  liable  for  debts.  §213. 

190.  Possession  of  real  estate.  214. 

191.  Sale  without  an  order  of  court.  215. 

192.  Sales  under  a  will— Statutes.  216. 

193.  Same — When  will  does  not  con-  217. 

fer  power.  218. 

194.  Exercise   of  power   by   one   of  219. 

two  executors.  220. 

195.  Sale    to    pay    debts,    when    al- 

lowed. 221. 

196.  Same — Marshaling  assets.  222. 

197.  Conveyance  by  heir  or  devisee, 

eflfect  of.  223. 

198.  May    redeem    land,    may    lease  224. 

when.  225. 

199.  What  real  estate  liable  to  sale.  226. 

200.  Property  fraudulently  conveyed  227. 

by  decedent.  228. 

201.  Same — Suit  by  creditor. 

202.  Same— When     suit     must     be  229. 

brought.  230. 

203.  Who   may   apply   to   sell    land, 

and  when.  231. 

204.  Requisites     of     petition  — The  232. 

statute.  233. 

205.  Who  should  be  made  parties.  234. 

206.  What  issues  petition  tenders.  235. 

207.  The  proceeding  sui  generis. 

208.  Petition  by  creditor.  236. 

209.  What  is  necessary  to  jurisdic- 

tion. 237. 

210.  What  notice  required. 

211.  When  notice  may  be  waived.  238. 

212.  Minor  defendants,  guardian  ad  239. 

litem.  240. 

264 


Hearing  on  the  petition. 

The  order  of  sale. 

Order  carried  out  by  successor. 

Inventory  and  appraisement. 

Bond  for  sale  of  real  estate. 

The  interest  of  the  widow. 

Same — The  statute. 

Same — When  the  interest  may 
be  sold. 

Same — Sale  to  pay  liens. 

Same — Setting  off  the  widow's 
interest. 

Same — Right  of  election. 

The  interest  of  the  widower. 

As  to  liens  on  the  real  estate. 

Mortgages  on  the  real  estate. 

Mortgagee's  right  to  file  claim. 

Proceedings  to  enforce  lien 
suspended. 

Same — Statute  construed. 

Bond  to  secure  payment  of  lien 
after  sale. 

As  to  mortgage  by  an  heir. 

The  sale,  how  made,  etc. 

Sale  may  be  on  credit. 

Notice  of  the  sale  to  be  given. 

Representations  by  an  adminis- 
trator or  executor. 

Purchase  by  executor  or  ad- 
ministrator. 

Such  sale  void  or  voidable, 
limitation,  resale,  etc. 

Report  and  confirmation  of  sale. 

The  deed  and  its  approval. 

When  a  resale  may  be  had. 


§189  DISPOSITION    OF    REAL    PROPERTY.  265 

241.  Setting  sale  aside  on  account  of        245.  Giving  bond  to  prevent  sale,  etc. 

defects.  246.  Preventing     sale     and     barring 

242.  Same — Time   witliin  virhich   ac-  claims. 

tion  must  be  brought.  247.  Conveyance     upon    title    bond, 

243.  Same — When  heirs  estopped.  the  statute. 

244.  Mortgage  and  lease  of  real  es-       248.  Same — Statute  construed. 

tate.  249.  Legalizing  act. 

§  189,  Real  estate  liable  for  debts. — By  the  early  common 
law  a  decedent's  debts  had  to  be  paid  out  of  his  personal  estate. 
His  lands  were  inalienable  and  could  not  be  sold  for  the  payment 
of  his  debts.  This  doctrine  grew  out  of  the  peculiar  manner  in 
which  real  estate  was  held  under  the  feudal  system.  But  the 
growth  of  trade  and  commerce  made  it  necessary  that  creditors 
should  be  provided  with  some  means  for  satisfying  their  claims 
by  compulsory  process  against  a  debtor's  land.  Hence  has  grown 
the  right  of  execution,  attachment,  etc.,  against  a  debtor's  real 
estate  in  his  lifetime,  and  the  right  of  his  executor  or  adminis- 
trator, after  his  death,  to  sell  his  real  estate  to  make  assets  with 
which  to  pay  his  debts. 

By  the  force  of  the  statute  in  this  state,  the  real  estate  of  an 
intestate  is  as  completely  subject  to  his  debts  as  is  his  personal 
estate,  and  even  though  the  personal  estate  is  wasted  by  the  ad- 
ministrator, the  purchaser  of  the  real  estate  from  an  heir  is  not 
protected.^ 

In  one  case  it  is  said,  "the  statute  not  only  gives  the  adminis- 
trator the  right,  but  makes  it  his  duty,  when  the  personal  prop- 
erty is  not  sufficient,  to  convert  the  real  estate  into  assets  for  the 
payment  of  debts.  Where  this  right  is  asserted;  and  the  lands  are 
sold  and  conveyed,  the  title  to  the  land  which  descended  to  the 
heir  is  completely  divested.  And,  although  the  heir  may  have 
sold  and  conveyed  the  land,  the  conveyance  made  by  an  admin- 
istrator under  the  order  of  the  court  is  not  in  any  wise  afifected 
or  impaired  by  the  previous  incumbrance  or  conveyance  by  the 
heir.  This  conclusion  logically  results  from  the  fact  that,  under 
the  statutes  of  our  state,  the  real  and  personal  property  of  an 

'Nettleton   v.    Dixon,   2    Ind.    446;     Fiscus  v.  Moore,  121  Ind.  547,  23  N, 

E.  362,  7  L.  R.  A.  235. 


266  INDIANA  PROBATE  LAW. 


190 


intestate  descend  to  the  same  persons  and  in  the  same  propor- 
tions, and  both  are  equally  chargeable  with  the  payment  of  his 
debts,  with  the  exception  that  the  personal  estate  must  be  ex- 
hausted first."" 

The  wasting  of  the  personal  assets  of  the  decedent  by  his 
executor  or  administrator  does  not  relieve  the  real  estate  from 
liability  for  the  debts.^  If,  however,  such  wasting  is  a  wrongful 
one  by  the  administrator,  he  would  perhaps  be  liable  on  his  bond.'' 
But  if  the  assets  are  wasted  or  destroyed  without  fault  of  the 
executor  or  administrator;  or  by  reason  of  a  decrease  in  the  value 
of  such  assets,  or  the  insolvency  of  the  administrator  or  executor 
and  their  sureties,  the  loss  falls  on  the  estate.^ 

This  power  of  sale  is  purely  statutory.  The  executor  or  ad- 
ministrator takes  no  title  to  or  interest  in  the  real  estate  of  his 
decedent,  but  only  a  naked  power  to  sell,  and  this  power  is  con- 
ditioned upon  the  insufficiency  of  the  personal  estate  to  pay  the 
debts  of  the  decedent.*^ 

§  190.  Possession  of  real  estate. — As  a  general  rule,  land, 
upon  the  death  of  an  ancestor,  passes  to  the  heirs  or  devisees,  who 
are  immediately  vested  with  the  title  thereto  and  the  right  of 
possession,  and  are  entitled  to  the  full  enjoyment  of  such  land. 
And  at  common  law  the  title  to  real  property  vested  absolutely  in 
the  heirs  upon  the  death  of  the  ancestor,  and  was  not  subject  to 
be  made  assets  for  the  payment  of  debts.^ 

=  Fiscus  V.  Moore,  121  Ind.  547,  23  '  Alerritt  v.  Merritt,  62  Mo.  150 ; 
N.  E.  362,  7  L.  R.  A.  235;  Nelson  v.  Foley  v.  McDonald,  46  Miss.  238; 
Murfee,  69  Ala.  598.  Personal  prop-  Carlton  v.  Byers,  70  N.  Car.  691. 
erty  is  the  primary  fund  for  the  pay-  '  Faran  v.  Robinson,  17  Ohio  St. 
ment  of  debts  and  legacies,  even  242,  93  Am.  Dec.  617;  Evans  v.  Fish- 
where  they  expressly  were  charged  on  er,  40  Miss.  643 ;  Lilly  v.  Wooley,  94 
the  real  estate.  It  should  only  be  re-  N.  Car.  412;  May  v.  Parham,  68  Ala. 
sorted  to  as  an  auxiliary  fund  after  253. 

the    personalty    has    been    exhausted.  "Tippecanoe  Loan  &c.  Co.  v.  Carr, 

Stevens  v.  Gregg,  10  Gill  &  J.  (Md.)  40    Ind.    App.    125,    78    N.    E.    1043; 


Moore  v.  Moore,  155  Ind.  261,  57  N. 


143 

^Conger   v.    Cook,   56    Iowa    117,   8     E.  242. 
N.   W.   782;    Smith  v.    Brown,  99  N.        "Fiscus  v.  Moore,   121   Ind.  547,  23 
Car.  377.  6  S.  E.  667;  Van  Bibber  v.     N.  E.  362,  7  L.  R.  A.  235. 
Julian,  81  Mo.  618. 


IQO 


DISPOSITION    OF    REAL    PROPERTY, 


267 


An  executor  or  administrator  has  no  power  over  a  decedent's 
real  estate  except  what  may  be  given  him  by  statute  or  by  the 
will.  And  he  cannot,  in  the  absence  of  some  authority,  take  or 
pay  out  money  from  it  as  such  executor  or  administrator.^  Nor 
can  an  executor  or  administrator  prevent  the  heirs  or  devisees  of 
a  decedent  from  exercising  their  right  to  the  title  and  possession 
of  their  ancestor's  real  estate.  Such  heirs  may  have  partition  of 
such  real  estate,  and  the  title  will  vest  in  them  until  it  passes  to  a 
purchaser  at  the  sale,  by  the  executor  or  administrator  for  the 
payment  of  the  debts  of  such  ancestor.^ 

The  title  to  the  real  estate,  at  the  death  of  the  ancestor  intestate, 
vests  at  the  instant  of  his  death  in  his  heirs,  and  they  take  and 
retain  such  title  with  all  the  rights  and  incidents  belonging 
thereto,  until  the  administrator  of  the  ancestor  effectively  asserts 
his  right  thereto  for  the  purposes  provided  in  the  statute.^"  The 
right  of  action  in  ejectment,  and  for  waste  and  injury  to  the 
freehold  after  the  ancestor's  death  is  in  the  heirs  and  not  in  the 


*  Hankins  v.  Kimball,  57  Ind.  42 ; 
Taylor  v.  Fickas,  64  Ind.  167,  31  Am. 
Rep.  114;  Hendrix  v.  Hendrix,  65 
Ind.  329;  Evans  v.  Hardy,  76  Ind. 
527;  Kidwell  v.  Kidwell,  84  Ind.  224; 
Gregory  v.  Wilson,  52  Ind.  233 ;  Dun- 
can V.  Gainey,  108  Ind.  579,  9  N.  E. 
470. 

^Cole  V.  Lafontaine,  84  Ind.  446; 
Hankins  v.  Kimball,  57  Ind.  42.  The 
devisee  of  lands  and  his  grantee  take 
subject  to  the  payment  of  the  testa- 
tor's debts ;  and  it  is  an  executor's 
dut\'  to  apply  to  the  proper  court  for 
an  order  for  the  sale  of  land  to  pay 
debts  when  necessary,  and  it  is  prop- 
er to  order  such  sale  by  him  on  his 
own  petition  whenever  it  would  be 
proper  to  order  it  on  the  petition  of 
-creditors.  The  consent  of  an  exec- 
utor or  administrator  to  the  sale  of 
land  of  the  decedent  by  an  heir  or 
devisee  cannot  divest  the  creditors 
of  the  decedent  of  their  right  to  have 
their  debts  made  out  of  the  land,  and 


cannot  estop  such  executor  or  admin- 
istrator when  the  rights  of  creditors 
would  be  affected.  Pell  v.  Farquar, 
3  Blackf.  (Ind.)  331,  overruled. 
Aloncrief  v.  IMoncrief,  IZ  Ind.  587. 

^''Shaw  v.  Hoadley,  8  Blackf. 
(Ind.)  165;  Beckett  v.  Selover,  7  Cal. 
215,  68  Am.  Dec.  237;  Streeter  v. 
Paton,  7  Mich.  341;  Jones  v.  Bill- 
stein,  28  Wis.  221;  Overturf  v.  Du- 
gan,  29  Ohio  St.  230.  Where  a  tes- 
tator has  devised  his  real  estate, 
charging  it  with  the  payment  of  his 
debts,  his  personal  representative,  if 
the  personal  estate  be  insufficient, 
may  obtain  an  order  to  sell  the  lands, 
the  devise  being  no  obstacle  what- 
ever. Bennett  v.  Gaddis,  79  Ind.  347. 
In  such  case  the  petition  is  not  bad, 
as  against  the  devisee,  for  a  failure 
to  aver  that  the  will  has  been  ad- 
mitted to  probate;  for  without  the 
will  he  would  have  no  interest  in  the 
land.     Bennett  v.  Gaddis,  79  Ind.  347. 


268  INDIANA  PROBATE  LAW.  §  IQI 

administrator.^^  The  administrator  is  not  entitled  to  the  posses- 
sion of  the  real  estate  of  his  decedent  unless  it  becomes  necessary 
to  sell  it  to  pay  debts.  For  this  reason  he  cannot  maintain  an 
action  for  possession,  nor  in  any  manner  litigate  the  title ;  nor 
can  he  claim  the  right  to  possession  in  such  a  manner  as  to  make 
that  possession  adverse  to  the  heirs.^" 

Until  it  becomes  necessary  to  sell  an  intestate's  land  to  pay 
debts,  his  administrator's  right  therein  is  a  mere  naked  power 
resting  only  upon  the  contingency  that  the  personal  property  will 
be  insufficient  to  pay  such  debts. ^^  Until  the  happening  of  that 
contingency  the  possession  belongs  to  the  heirs;  and  if  there 
should  be  no  debts,  or  sufficient  personal  property  to  pay  them, 
the  administrator  has  no  right  to  the  possession  of  the  real 
estate." 

Where  a  Avill  gives  to  the  executor  a  mere  naked  power  to  sell 
the  real  estate,  neither  the  title  nor  the  right  to  the  possession  of 
such  real  estate  passes  to  such  executor,  nor  is  he  liable  for  the 
rent  thereof. ^^ 

§  191.  Sale  without  an  order  of  court. — An  administrator 
cannot  sell  real  estate  of  his  decedent  without  an  order  of  court 
previously  obtained  therefor,  but  an  executor  sometimes  may. 

If  a  testator  directs  by  will  that  his  real  estate  be  sold  without 
declaring  by  whom  the  sale  shall  be  made,  the  power  to  sell,  if 
no  contrary  intention  appear  from  the  will,  shall  vest  in  the 
executor.^®  Williams  on  Executors  (7th  ed.),  p.  655,  in  constru- 
ing a  general  and  indefinite  direction  by  a  testator,  in  his  will,  for 
the  sale  of  his  property  says :  "It  sometimes  happens  that  a 
testator  directs  his  estate  to  be  disposed  of  for  certain  purposes, 

"jNIarsh    v.    Waupaca    County,    38  29  N.   E.   188;  Fike  v.   Green,  64  N. 

Wis.  250 ;   ^litchell  v.   State,  63  Ind.  Car.  665 ;  Laidley  v.  Kline,  8  W.  Va. 

574.  218. 

"Comparet  v.  Randall,  4  Ind.  55;  "  Hillman    v.    Stephens,    16    N.    Y. 

Kidwell    V.    Kidwell,    84    Ind.    224;  278;    Phelps   v.    Funkhouser,    39    111. 

Flood  V.  Pilgrim,  32  Wis.  376;  Hart  401;    Gladson    v.    Whitney,    9    Iowa 

V.    Kendall,   82   Ala.    144,   3    So.   41;  267;   Stewart  v.  Smiley,  46  Ark.  373. 

Noon  V.  Finnegan,  29  Minn.  418,   13  "Dunn  v.  Renick,  33  W.  Va.  476, 

N.  W.  197 ;  King  v.  Boyd,  4  Ore.  326.  10  S.  E.  810. 

"Harding  v.  Le  Moyne,  114  111.  65,  "  Alunson  v.  Cole,  98  Ind.  502. 


§    1 91  DISPOSITION    OF    REAL    PROPERTY.  269 

without  declaring  by  whom  the  sale  shall  be  made.  In  the  ab- 
sence of  such  a  declaration,  if  the  proceeds  be  distributable  by 
the  executor,  he  shall  have  the  power  by  implication.  Thus  a 
power  in  a  will  to  sell  or  mortgage,  without  naming  a  donee  will, 
if  a  contrary  intention  do  not  appear,  vest  in  the  executor,  if  the 
fund  is  to  be  distributable  by  him,  either  for  the  payment  of  debts 
or  legacies." 

The  making  of  certain  items  charges  upon  lands  which  have 
been  devised,  or  directing  that  the  lands  be  sold  for  the  payment 
of  debts,  does  not  authorize  an  executor  to  sell  such  lands  with- 
out an  order  of  court.^^ 

But  when  the  will  confers  upon  the  executor  the  power  to  sell 
and  convey  the  lands  of  his  testator,  he  may  sell  and  make  con- 
veyances of  such  lands  without  first  procuring  from  the  court  an 
order  for  such  sale.^® 

In  cases  falling  within  the  statutes  it  is  not  necessary  to 
obtain  an  order  of  court  to  authorize  the  sale  of  the  real  estate 
so  specially  devised.  And  where  the  will  directs  that  the  real 
estate  thus  devised  be  appraised  before  sale,  and  in  fact  such  ap- 
praisement is  not  made  although  the  sale  is  made  and  the  deed 
executed  and  delivered  in  accordance  with  the  terms  of  the  will, 
in  the  absence  of  proof  to  the  contrary,  the  court  will  presume 
that  such  appraisement  was  made.^^ 

Where  full  power  is,  by  the  will,  conferred  upon  the  executor 
to  sell  and  convey  real  estate  of  his  testator  without  reporting 
either  the  sales  or  conveyances  to  the  court  for  confirmation,  such 
executor  is  not  -thereby  excused  from  properly  applying  the  pro- 
ceeds of  such  sale  to  the  payment  of  claims  against  the  estate  in 
their  order,  and  the  court  can  compel  the  prompt  application  of 
the  money  so  received  to  such  purpose."" 

A  power  is  defined  to  be  an  authority  whereby  the  person  is 

"Duncan  v.   Gainey,   108  Ind.  579,  "Davis   v.    Hoover,    112   Ind.   423, 

9  N.  E.  470.  14  N.  E.  468. 

"Munson    v.    Cole,    98    Ind.    502;  =»  Phelps  v.  Martin,  74  Ind.  339;  Ex 

Davis  V.  Hoover,  112  Ind.  423,  14  N.  parte    Hayes,    88    Ind.    1;    Ex    parte 

E.   468;    Bailey   v.    Rinker,    146   Ind.  Wright,  65   Ind.  504. 
129,  45  N.  E.  38. 


270  INDIANA  PROBATE  LAW.  §  I9I 

enabled  to  dispose  of  an  interest  in  real  estate  vested  in  himself 
or  another,  and  may  be  conferred  by  will  without  the  use  of 
technical  words.  Any  expression  in  the  will  showing  an  intention 
to  confer  upon  the  designated  persons  the  power  to  dispose  of  the 
testator's  property  by  deed  will  be  sufficient.-^ 

A  power  of  sale  is  often  implied  from  directions  to  the  execu- 
tors to  divide  the  property,  and  it  appears  from  the  nature  of  the 
property  or  the  context  of  the  will  that  a  division  of  the  property 
in  specie  is  impossible."^ 

A  power  of  sale  was  implied  from  a  devise  of  the  use  of  land 
"until  the  sale  and  conveyance  of  said  premises  by  my  executor 
as  hereinafter  provided"  and  no  subsequent  provision  followed.-^ 

To  invest  an  executor  with  "full,  ample  and  complete  power  to 
dispose  in  such  manner  as  he  thinks  proper"  of  the  testator's  real 
estate,  gives  him  both  power  to  sell  and  convey  without  any  order 
of  court.-* 

The  law  is  well  settled  that  a  devise  of  the  rents  and  profits  of 
land  is  equivalent  to  a  devise  of  the  land  itself,  and  will  carry  the 
legal  as  well  as  the  beneficial  interests  therein.  And  the  rule  is 
the  same  where  the  devise  is  of  the  income."^ 

Where  the  devisee  of  a  life  estate  has  an  unqualified  right  to 
sell,  with  the  power  of  spending  the  proceeds  at  pleasure  in  his 
lifetime,  or  of  disposing  of  it  by  will,  such  power  to  sell,  in  the 
absence  of  a  bequest  over,  is  construed  as  indicating  an  intention 
on  the  part  of  the  testator  to  create  an  absolute  estate  in  fee.  And 
even  though  there  be  a  devise  over,  an  absolute  power  of  dispo- 
sition may  create  an  absolute  estate  in  the  first  taker,  if  the  power 

"'  Page   on  Wills,  821.  •'  Thompson    v.    Schenck,     16     Ind. 

"Mulligan  v.   Lambe,   178   111.   130,  194;  Roy  v.  Rowe,  90  Ind.  54;  Com- 

52  N.  E.   1052;   Story  v.   Palmer,  46  mons  v.  Commons,   115   Ind.    162,   16 

N.   J.    Eq.    1,   18   Atl.   Z62>;   lasigi  v.  N.   E.  820,  17  N.   E.  271;  Bowen  v. 

lasigi,   161   Mass.  75,  36  N.   E.  579;  Swander,  121  Ind.  164,  22  N.  E.  725; 

Mimms   V.   Delk,   42   S.   Car.   195,  20  Hunt  v.  Williams,  126  Ind.  493,  26  N. 

S.  E.  91.  E.    177;    Stout   v.    Dunning,   72    Ind. 

"=•  Cahil  V.   Russell,   140  N.   Y.  402,  343 ;  Rumsey  v.  Durham,  5  Ind.  71 ; 

35  N.  E.  664.  2  Jarman   on  Wills,  403;    Butterfield 

-*  Steele   v.    Worthington,    2    Ohio  v.  Haskins,  ZZ  Me.  392. 
182. 


192 


DISPOSITION    OF    REAL    PROPERTY.  2/1 


of  disposition  is  plainly  inconsistent  with  the  purpose  to  create 
an  estate  for  life."*' 

Where  a  will,  by  its  terms,  so  disposes  of  the  proceeds  to  be 
derived  from  a  sale  of  the  real  estate  as  to  blend  and  mix  them 
with  the  personal  estate,  the  executor  has,  by  implication,  power 
to  sell  such  real  estate.-' 

And  a  direction  in  the  will  to  convert  the  whole  estate  into 
money,  without  specifying  who  shall  do  it,  or  how  it  shall  be 
done,  confers  upon  the  executor,  by  implication,  the  power  to  sell 
the  real  estate.-® 

§  192.  Sales  under  a  will— Statutes. — The  power  to  sell 
without  an  order  of  court  is  given  in  this  state  by  statute  as  fol- 
lows :  \Mien  real  estate  or  any  interest  therein  is  devised  by  the 
will,  or  directed  to  be  sold  for  the  payment  of  debts  or  legacies, 
the  executor  shall  proceed  to  dispose  of  the  estate  and  apply  the 
same  according  to  the  provisions  of  the  will.-^ 

When  the  real  estate  shall  have  been  devised,  as  mentioned  in 
above  section,  it  shall  not  be  necessary  for  the  executor  or  ad- 
ministrator with  the  w^ill  annexed  to  file  a  petition  or  procure  an 
order  of  court  for  the  sale  of  the  real  estate.  Unless  different 
provision  be  made  in  the  will  touching  the  manner  of  the  sale,  it 
shall  be  governed,  as  to  the  inventory  and  appraisement  of  the 

^•^  Robertson  v.  Robertson,  120  Ind.  —  96  N.  E.  481.  A  mere  pow- 
333,  22  N.  E.  310;  Tower  v.  Hart-  er  given  by  will  to  an  exec- 
ford,  115  Ind.  186,  17  N.  E.  281;  utor  to  sell  lands  does  not  give 
VanGorder  v.  Smith,  99  Ind.  404.  him  the  right  of  possession.     Rubot- 

='Lippincott  v.  Lippincott,  19  N.  J.  tom  v.  Morrow,  24  Ind.  202,  87  Am. 

Eq.    121;    Council   v.   Averett,  95    N.  Dec.    324.      If    an    executor    collects 

Car.    131;   ^lott  v.  Ackerman,  92  N.  rents  when  not  authorized  by  law  to 

Y    539_    '  do  so,  the  estate  is  not  liable  for  such 

=*  Putnam  v.   Storv.  132  Mass.  205 ;  rents.     Hendrix  v.  Hendrix,  65  Ind. 

Collier  V.  Grimesevr36  Ohio  St.   17;  329;  Trimble  v.  Pollock,  77  Ind.  576; 

Lantz  V.   Bover,  81    Pa.    St.   325.     If  Evans  v.  Hardy,  76  Ind.  527. 

the  testator  directs  that  his  real  estate  »  Burns'  R.   S.   1908,   §  2876.     If  a 

be   sold  without   declaring  by  whom  testator  directs  that  his  real  estate  be 

the  sale  shall  be  made,  the  power  to  sold,  without  declaring  by  whom  the 

sell,  if  no  contrary  intention  appears,  sale  shall  be  made,  the  power  to  sell, 

vests     in     the     executor.       Davis     v.  if  no  contrary  intention  appear,  vests 

Hoover,     112     Ind.     423,     14    X.     E.  in  the  executor,  if  the  proceeds  are 

468;    Walling  v.   Scott,  —  Ind.  App.  distributable  by  him,  or  if  the  duties 


272  INDIANA    PROBATE    LAW.  §    193 

real  estate,  notice  and  terms  of  sale,  report  and  confirmation 
thereof  and  deed,  by  the  provisions  of  the  statute  in  reference  to 
the  sales  of  real  estate  by  administrators  for  the  payment  of 
debts.  Such  sale,  in  the  absence  of  directions  in  the  will,  may  be 
at  public  or  private  vendue,  in  the  discretion  of  the  executor  or 
administrator  with  the  will  annexed;  and  in  case  of  private  sale, 
notice  thereof  shall  be  given  as  in  case  of  public  sale,  unless  the 
appraised  value  of  the  real  estate  shall  not  exceed  one  thousand 
dollars,  in  which  case  the  sale  may  be  made  in  his  discretion, 
w^ithout  notice ;  such  sale,  i  f  at  public  vendue,  shall  not  be  for  less 
than  two-thirds  of  its  appraised  value,  and,  if  at  private  vendue, 
for  not  less  than  the  appraised  value  thereof.^" 

While  the  above  statute  makes  it  unnecessary  for  an,  executor, 
in  the  cases  therein  mentioned,  to  either  file  a  petition  or  procure 
an  order  of  court  for  the  sale  of  real  estate  so  devised,  yet  unless 
the  time  and  manner  of  sale  is  left  to  the  discretion  of  the  execu- 
tor, or  the  will  itself  prescribes  how  the  sale  shall  be  made,  it 
would  seem  to  be  necessary  to  file  in  court  an  inventory  and 
appraisement  of  the  real  estate,  give  notice  of  the  sale,  and  report 
the  same  together  with  the  deed  to  the  court  having  proper  pro- 
bate jurisdiction  for  approval  and  confirmation,  but  unless  the 
will  requires  it  no  additional  bond  need  be  filed. ^^ 

§  193.  Same — When  will  does  not  confer  power. — In  con- 
struing wills  the  courts  have  made  a  distinction  between  a  devise 
to  the  executor  of  real  estate,  with  directions  to  sell  the  same  and 
make  distribution  of  the  proceeds,  and  a  devise  which  directs  that 
real  estate  be  sold  and  the  proceeds  distributed  but  without  pass- 
ing the  legal  title  to  the  executor.  In  the  one  case  it  is  held  that 
the  executor  is  the  custodian  of  the  title  until  divested  by  the  sale, 
while  in  the  other  the  title  is  held  to  be  in  the  beneficiary  or  the 
heir  until  the  sale  is  made.^" 

imposed    with    reference    thereto    are  Davis  v.  Hoover,  112  Ind.  423,  14  N. 

such  as  usually  devolve  upon  an  exec-  E.  468 ;  Valentine  v.  Wysor,  123  Ind. 

utor.      Davis    v.    Hoover,    112    Ind.  47.  23  N.  E.  1076,  7  L.  R.  A.  788n. 
423,  14  X.  E.  468.  ''3  Jarman  on  Wills,  36;  Brumfield 

'"Burns'  R.  S.  1908,  §  2877.  v.   Drook,   101  Ind.   190;   Simonds  v. 

^'Munson    v.    Cole,    98    Ind.    502;  Harris,    92    Ind.    505;    Thompson    v. 


193 


DISPOSITION    OF    REAL    PROPERTY. 


273 


A  mere  direction  to  an  executor  to  sell  lands  for  the  purpose  of 
paying  legacies,  or  making  distribution,  does  not  vest  any  title  to 
the  land  in  the  executor.  To  cut  off  the  heir  at  law  the  title  must 
be  devised,  expressly  or  by  implication,  to  some  other  person. 
Where  there  is  merely  a  naked  power  to  sell  the  estate  and  dis- 
tribute the  proceeds,  it  is  not  necessary  that  the  executor  should 
have  the  title  to  the  estate  to  enable  him  fully  to  carry  into  effect 
the  intentions  of  the  testator.  In  that  case  the  legal  title  to  the 
estate  will  be  divested  the  moment  the  executor  executes  his 
trust,  but  in  the  meantime,  and  until  a  sale  is  made,  the  heir  is 
entitled  to  the  profits.^'  The  doctrine  is  thus  stated  in  an  old 
work:  "A  devise  of  land  to  executors  to  sell  passes  the  interest 
in  it,  but  a  devise  that  executors  shall  sell  the  land,  or  that  lands 
shall  be  sold  by  the  executors,  gives  them  but  a  power,  and  it 


Schenck,  16  Ind.  194;  Bowen  v. 
Swander,  121  Ind.  164,  22  N.  E.  725. 
"I  also  direct  that  my  executor  shall, 
after  the  decease  of  my  wife,  sell 
and  dispose  of  all  my  property,  both 
real  and  personal,  *  *  *  and  di- 
vide the  proceeds  among  my  ten  chil- 
dren," confers  upon  the  executors  a 
mere  naked  power  to  sell,  and  does 
not  invest  them  with  any  interest  in 
or  title  to  the  property.  Brumfield  v. 
Drook.  101  Ind.  190;  Doe  v.  Lanius, 
3  Ind.  441.  56  Am.  Dec.  518n;  Wil- 
son V.  Rudd,  19  Ind.  101.  A  mere 
naked  power  or  direction  given  by 
will  to  an  executor  to  sell  lands  does 
not  vest  any  title  to  the  lands  in  the 
executor.  Doe  v.  Lanius,  3  Ind.  441, 
56  Am.  Dec.  518n;  Thompson  v. 
Schenck,  16  Ind.  194;  Brumfield  v. 
Drook,  101  Ind.  190.  When  a  will 
confers  upon  an  executor  power  to 
sell  and  convey  lands,  such  executor 
may  sell  and  make  conveyances  with- 
out applying  to  the  court  for  an  order 
of  sale.  Munson  v.  Cole,  98  Ind. 
502;  Davis  v.  Hoover,   112  Ind.  423, 


14  X.  E.  468.  The  making  of  certain 
items  charges  upon  devised  lands,  or 
directing  that  lands  be  sold  for  the 
payment  of  debts,  will  not  authorize 
an  executor  to  sell  such  lands  with- 
out an  order  of  court.  Duncan  v. 
Gainey,  108  Ind.  579,  9  N.  E.  470.  If 
lands  are  improperly  sold  without  an 
order  of  court,  and  the  purchase- 
money  is  applied  to  the  payment  of 
debts,  the  purchaser  becomes  the 
equitable  owner  of  such  debts.  Dun- 
can v.  Gainey,  108  Ind.  579,  9  X.  E. 
470. 

"^  Doe  V.  Lanius,  3  Ind.  441,  56  Am. 
Dec.  518n;  Mclntire  v.  Cross,  3  Ind. 
444;  Rubottom  v.  Morrow,  24  Ind. 
202,  87  Am.  Dec.  324.  In  Doe  v. 
Lanius,  3  Ind.  441,  56  Am.  Dec.  518n, 
it  is  said:  "We  think  it  is  well  set- 
tled by  the  current  of  American  as 
well  as  of  English  decisions,  that  a 
mere  direction  to  an  executor  to  sell 
lands  for  the  purpose  of  paying 
legacies  or  making  distribution,  does 
not  vest  any  title  to  the  land  in  the 
executor." 


18— Pro.  L.\w. 


274  INDIANA    PROBATE    LAW.  §    194 

seems  that  even  a  devise  of  land  by  a  testator  to  be  sold  by  his 
executors,  without  words  giving  the  estate  to  them,  will  invest 
them  with  a  power  only,  and  not  give  them  an  interest.  "^^  In  the 
absence  of  a  will  a  decedent's  land  is  not  distributed,  but  de- 
scends to  his  heirs ;  nor,  where  there  is  a  will,  are  such  lands  dis- 
tributed in  the  statutory  and  ordinary  sense  of  the  term  distribu- 
tion, but  such  distribution  is  made  according  to  the  terms  of  the 
will.'' 

§  194.  Exercise  of  power  by  one  of  two  executors. — The 
rule  that  the  act  of  one  joint  executor  is  the  act  of  all  applies  in 
the  exercise  of  a  power  of  sale  under  a  will,  the  statute  providing 
that  when  any  real  estate  or  interest  therein  is  given  or  devised, 
by  any  will  legally  executed,  to  the  executors  therein  named,  or 
any  of  them,  to  be  sold  by  them  or  any  of  them ;  or  where  such 
estate  is  ordered  by  any  will  to  be  sold  by  the  executors,  and  any 
executor  or  executors  shall  neglect  or  refuse  to  take  upon  him  or 
them  the  execution  of  such  will,  then  all  sales  made  by  the  execu- 
tor or  executors  who  shall  take  upon  him  or  them  the  execution 
of  such  will  shall  be  equally  valid  as  if  the  other  executor  or 
executors  had  joined  in  such  sale.'" 

The  question  as  to  the  right  of  the  successor  of  an  executor  to 
exercise  a  power  of  sale  conferred  by  will  upon  the  original 
executor  is  one  that  must  turn  upon  the  manifest  intention  of  the 
testator  as  found  in  the  will.  If  the  power  of  sale  given  is  man- 
datory in  character,  the  executor  being  merely  the  minister  ap- 
pointed for  its  exercise,  any  successor  to  such  executor  may  carry 
out  such  power.  But  if  the  exercise  of  the  power  of  sale  is  left 
to  the  personal  trust  and  discretion  of  the  executor,  the  right  to 
exercise  it  rests  in  him  and  does  not  pass  to  his  successor  in 
office." 

§  195.  Sale  to  pay  debts,  when  allowed. — Neither  an  ex- 
ecutor nor  an  administrator  has  power  to  sell  real  estate  of  his 

^  Sugden  on    Powers,   129.  Tulone,  9   N.   J.   Eq.    146 ;   Farrar  v. 

'=  Beard  v.  Lofton,   102  Ind.  408,  2  ^IcCue,  89  N.  Y.   139;   Railroad  Co. 

N.   E.   129.  V.   Hutchins,  37  Ohio.   St.  282;    Sar- 

'•=  Burns'  R.  S.  1908,  §  2878.  gent  v.  Sibley,  11  Bull.  177. 
''  Page  on  Wills,  830 ;  Chambers  v. 


8  195  DISPOSITION    OF    REAL    PROPERTY.  275 

decedent  except  such  power  be  found  in  the  will  or  in  the  statute. 
The  statute  only  authorizes  a  sale  when  the  land  is  needed  to  pay 
debts.  It  is  provided  that  if  the  personal  estate  of  a  decedent 
shall  be  insufficient  for  the  payment  of  the  liabilities  thereof,  the 
real  estate,  if  any,  shall  be  sold  to  make  assets  for  the  payment  of 
such  liabilities.^^ 

Where  the  will  makes  specific  bequests  a  charge  or  lien  on  the 
real  estate  of  the  testator,  it  is  the  duty  of  executor  or  adminis- 
trator with  the  will  annexed  to  sell  such  real  estate  for  their  pay- 
ment when  he  finds  it  necessary  to  do  so.^** 

The  law  does  not  confer  upon  an  executor  or  administrator  any 
authority  to  sell  and  convey  real  estate  of  his  decedent  except 
by  order  of  the  proper  court,  in  the  absence  of  a  testamentary 
provision  authorizing  such  sale.*" 

The  personal  estate  of  a  decedent  constitutes  the  primary  fund 
from  which  his  debts  are  to  be  paid ;  and  by  this  statute  such  de- 
cedent's real  estate  cannot  be  sold  by  his  personal  representatives 
unless  his  personal  estate  is  insufficient  to  pay  the  liabilities  of 
such  decedent.*^  This  rule  may,  however,  be  changed  by  a  tes- 
tator so  as  to  exonerate  his  personal  estate,  and  charge  all  the 
debts  upon  the  realty.  But  he  will  not  be  taken  to  have  done  so 
unless  a  clear  expression  of  such  an  intention  can  be  gathered 
from  the  whole  will.*" 

The  personal  estate  is  also  the  primary  fund  out  of  which  lega- 
cies are  to  be  paid,  and  a  legatee  cannot  have  his  legacy  made  a 
charge  upon  the  testator's  real  estate  unless  he  can  show  that  such 
testator  had  not  sufficient  personal  estate  at  the  time  he  executed 
the  will,  or  that  it  could  not  be  made  available  for  the  payment  of 
legacies.     The  right  to  resort  to  the  real  estate  is  not  a  primary 

'^  Burns'  R.   S.   1908,   §  2848.  Ind.   42;   Edwards  v.   Haverstick,  47 

**  American     Cannel     Coal     Co.     v.  Ind.  138. 

Clemens,  132  Ind.  163,  31  N.  E.  786;  "Scott   v.    Morrison,   5    Ind.    551; 

Davidson   v.   Coon,   125  Ind.  497,  25  Newcomer  v.   Wallace,  30   Ind.  216; 

X.  E.  601,  9  L.  R.  A.  584n.  Clarke  v.  Henshaw,  30  Ind.  144;  Ed- 

*"  Duncan  v.   Gainey,   108   Ind.   579,  wards    v.    Haverstick,    47    Ind.    138; 

9  N.  E.  470;  Kidwell  v.  Kidwell,  84  Chandler  v.  Chandler,  78  Ind.  417; 
Ind.    224;    Hankins    v.    Kimball,    57  Barton  v.  Bryant,  2  Ind.   189. 

*"'Scott  v.  Morrison,  5  Ind.  551. 


276  INDIANA    PROBATE   LAW.  §    1 96 

one,  and  a  legatee  who  asserts  such  right  must  show  affirmatively 
such  facts  as  call  the  right  into  existence.*^  It  is  made  the  duty 
of  an  executor  to  apply  to  the  proper  court  for  an  order  for  the 
sale  of  land  to  pay  debts,  when  necessary,  and  it  is  proper  for  the 
court  to  order  a  sale  upon  his  petition.  The  executor  is  a  trustee, 
invested  with  the  power,  in  a  proper  case  and  on  the  order  of  the 
proper  court,  to  convert  real  estate  into  money  for  the  benefit  of 
the  creditors  of  the  estate.** 

Costs  and  expenses  of  administration  are  a  charge  against  the 
estate  of  a  decedent,  and  constitute  such  liability  within  the  mean- 
ing of  this  statute  as  will  authorize  an  executor  or  administrator 
of  such  decedent,  in  the  absence  of  personal  property,  to  sell  real 
estate  of  the  deceased  to  pay  such  costs  and  exi^enses.*^ 

This  statute  so  modifies  the  common-law  rule  that  under  it  an 
administrator  may  sell  his  decedent's  real  estate  to  make  assets 
for  the  payment  of  debts  when  there  is  insufficient  personal  estate. 
This  power  conferred  upon  an  administrator  is  purely  statutory 
and  can  legally  be  exercised  only  under  an  order  of  court.*" 

§  196.  Same — Marshaling  assets. — \\'here  a  testator  in  his 
will,  in  general  terms,  directs  the  payment  of  all  his  debts,  and 
also  disposes  in  such  will  of  all  his  property  both  real  and  per- 
sonal without  any  specific  direction  as  to  what  portion  of  such 
property  shall  be  devoted  to  the  payment  of  debts,  a  question 
sometimes  arises  as  between  the  legatees,  devisees  and  executor 
as  to  how  the  assets  of  the  estate  shall  be  marshalled  for  the  pay- 
ment of  the  debts.  The  general  rule  is,  as  in  case  of  intestacy, 
that  the  personal  property  must  be  first  exhausted.  But  as  to  the 
real  estate  the  statute  provides  that  whenever  any  part  of  the  real 
estate  of  a  testator  is  left  undevised  by  his  will,  and  his  personal 

^'' Duncan  v.  Wallace,  114  Ind.  169,  26  N.  E.  794;  Stevens  v.  Burgess,  61 

16  N.  E.  137;  Lindsey  v.  Lindsey,  45  Me.    89;    Abila    v.    Burnett,    33    Cal. 

Ind.  552.  658;    Griffith    v.     Frederick     County 

"  Moncrief    v.    Moncrief,    73    Ind.  Bank,  6  Gill  &  J.   (Aid.)  424. 

587.  ■"  Tippecanoe  Loan  &c.  Co.  v.  Carr, 

*"  Dunning  v.   Driver,  25   Ind.  269;  40    Ind.    App.    125,    78    N.    E.    1043; 

Personette  v.   Johnson,  40  X.  J.  Eq.  Moore  v.  Moore,  155  Ind.  261,  57  N. 

173;  Falley  v.  Gribling,  128  Ind.  110,  E.  242. 


§    196  DISPOSITION    OF    REAL    PROPERTY.  277 

estate  shall  be  insufficient  for  the  pa3'ment  of  his  debts,  the  un- 
devised real  estate  shall  be  first  chargeable  with  debts,  in  exonera- 
tion, as  far  as  it  will  go,  of  the  real  estate  that  is  devised,  unless 
it  shall  appear  from  the  will  that  a  different  disposition  of  the 
assets  for  the  payment  of  his  debts  was  made  by  the  testator, 
when  they  shall,  for  that  purpose,  be  disposed  of  in  conformity 
with  the  provisions  of  the  will.*^ 

When  any  estate,  real  or  personal,  that  is  devised,  shall  be 
taken,  in  whole  or  in  part,  from  the  devisee  for  the  payment  of 
the  debts  of  the  testator,  all  the  other  devisees  shall  contribute 
their  respective  portions  of  the  loss  to  the  person  from  whom  the 
estate  is  taken,  so  as  to  make  the  loss  fall  equally  on  such  devisees 
according  to  the  estimated  value  of  the  property  received  by  each 
of  them,  unless  the  testator,  in  his  will,  in  making  a  specific  devise, 
shall  have  virtually  exempted  any  devisee  from  his  liability  for 
the  payment  of  the  debts  with  the  others,  or  shall  have,  by  any 
provision  in  his  will,  required  any  appropriation  of  his  estate,  or 
any  part  of  it,  for  the  payment  of  his  debts,  different  from  that 
prescribed  in  this  section,  in  which  case  the  estate  shall  be  applied 
in  conformity  with  the  provisions  of  the  will/® 

From  these  sections  of  the  statute  it  is  clearly  apparent  that 
two  facts  must  concur  in  order  that  an  executor  may  sell  devised 
land  for  the  payment  of  debts:  first,  that  the  personal  property 
not  specifically  bequeathed  is  insufficient  to  discharge  the  debts; 
second,  that  the  testator  left  no  real  estate  undisposed  of  by  will, 
or  that  the  real  estate  undevised,  if  any,  was  not  sufficient  for  the 
purpose  of  discharging  the  debts  of  the  testator/" 

Whenever  any  person  shall  have  devised  his  estate,  or  any  part 
thereof,  and  any  of  his  real  estate  subject  to  a  mortgage,  executed 
by  such  testator,  shall  descend  to  an  heir  or  pass  to  a  devisee,  and 
no  specific  direction  is  given  in  the  will  for  the  payment  of  such 
mortgage,  the  same  shall  be  discharged  as  follows : 

First.    If  such  testator  shall  have  charged  any  particular  part 

"Burns'  R.  S.  1908,  §  3125;  Ditton  *"  Hunt  v.  Hinshaw,  33  Ind.  App. 
V.  Hart,  —  Ind.  —  95  N.  E.  119.  75,  70  N.  E.  825. 

^'Burns'  R.   S.   1908,   §  3124. 


278  INDIANA    PROBATE    LAW.  §    1 9/ 

of  his  estate,  real  or  personal,  with  the  payment  of  his  debts,  such 
mortgage  shall  be  considered  a  part  of  such  debts. 

Second.  If  the  will  contain  no  direction  as  to  what  part  of  his 
estate  shall  be  taken  for  the  payment  of  his  debts,  and  any  part  of 
his  personal  estate  shall  be  unbequeathed  or  undisposed  of  by  his 
will,  such  mortgage  shall  be  included  among  his  debts,  to  be  dis- 
charged out  of  such  estate  unbequeathed  or  undisposed  of.^" 

Lands  which  pass  under  the  residuary  clause  of  a  will  shall  be 
first  sold  in  payment  of  the  testator's  debts  before  resort  can  be 
had  to  lands  specifically  devised. '^^  The  devise  of  land  specific- 
ally charged  by  the  testator  with  the  payment  of  all  liis  debts, 
does  not  exonerate  other  lands  of  his  where  the  lands  first  charged 
prove  insufficient  for  the  payment  of  his  debts." 

Whenever  an  estate  has  been  settled  under  the  provisions  of  the 
last  will  of  the  deceased,  and  lands  have  been  devised  by  such 
will,  and  the  lands  have  not  been  sold  to  pay  debts,  it  shall  be  the 
duty  of  the  clerk  of  the  court  in  which  said  estate  was  settled,  to 
cause  such  will  to  be  recorded  in  the  recorder's  office  of  tlie 
county  within  forty-five  days  from  the  settlement  of  said  estate, 
and  he  shall  tax  and  collect,  as  cost  of  said  estate,  a  fee  for  the 
auditor  and  recorder  equivalent  to  their  fees  for  like  services  in 
the  transfer  and  recording  of  deeds." 

§  197.  Conveyance  by  heir  or  devisee,  effect  of. — The  lia- 
bility of  the  land  for  the  debts  of  the  ancestor  is  one  of  the  bur- 
dens attaching  to  the  inheritance,  from  which  it  cannot  be  re- 
lieved by  any  act  of  the  heir  short  of  paying  the  debts. ^* 

An  heir  cannot  by  any  conveyance  discharge  the  land  descended 
to  him  from  its  liability  for  the  debts  of  his  ancestors,  nor  can  the 
administrator  and  the  heirs  make  any  arrangement  with  a  portion 
of  the  creditors  of  the  estate  by  which  the  assets  of  such  estate 

*  Burns'  R.  S.  1908,  §  3129.  Scherer  v.  Ingerman,  110  Ind.  428,  11 

"  Ditton  V.  Hart,  —  Ind.  — ,  95  N.  N.   E.  8,   12  N.   E.  304 ;  Weakley  v. 

E.  119.  Conradt,     56     Ind.     430;     Fiscus     v. 

'''Duncan  v.   Gainey,   108  Ind.  579,  Moore,  121  Ind.  547,  23  N.  E.  362,  7 

9  N.  E.  470.  L.  R.  A.  235;   Moore  v.  Moore,   155 

'''Burns'  R.  S.  1908,  §  3172.  Ind.  261,  57  N.  E.  242. 

"Miller    v.     Buell,    92    Ind.    482; 


§    197  DISPOSITION    OF    REAL    PROPERTY.  279 

will  be  diverted  from  other  creditors  who  are  not  parties  to  such 
arrangement.^^  And  an  administrator  who  consents  to  the  sale  of 
his  intestate's  lands  by  the  heirs  of  such  intestate  does  not  thereby 
estop  himself  from  tlie  right  to  afterwards  subject  such  lands  to 
sale  for  the  payment  of  the  debts  of  the  estate.  A  contrary  doc- 
trine was  announced  in  the  case  of  Pell  v.  Farquar,  3  Blkf.  (Ind.) 
331,  but  upon  this  one  point  that  case  is  now  overruled.^'' 

It  is  not  in  the  power  of  a  third  person  to  impair  or  embarrass 
the  personal  representatives  of  a  decedent  in  the  settlement  of 
the  estate  by  dealing  with  the  heirs,  upon  the  supposition  that 
their  interest  is  of  a  certain  or  fixed  character.  A  stranger  will 
not  be  allowed  to  intermeddle  so  as  to  destroy  the  equality  of  de- 
scent and  distribution.  The  right  of  heirs  to  participate  equally 
in  the  estate  of  their  ancestor  is  superior  to  that  of  a  lienholder 
with  notice." 

A  purchaser  acquires  precisely  the  same  right  and  interest 
which  the  heir  has  from  whom  he  takes  a  conveyance,  and  noth- 
ing more.  He  is,  therefore,  bound  to  know  that,  until  the  estate 
is  finally  settled,  the  sale  of  the  real  estate  may  become  necessary 
for  the  payment  of  debts. ^^ 

Such  purchaser  takes  the  property  subject  to  the  debts  of  the 
ancestor,  and,  although  his  title  may,  by  reason  of  a  sale  by  the 
administrator,  wholly  fail,  he  can  neither  recover  back  the  pur- 

^  Elliott  V.  Moore,  5  Blackf.  (Ind.)  was    an    answer    that    the    defendant 

270;     Whisnand    v.     Small,    65    Ind.  purchased    the    land    from    the    heirs 

120.  for    full    value,    with    and    upon   the 

'"  r^Ioncrief    v.    Moncrief,    Ti    Ind.  faith    of   consent    to    such    purchase 

587;  Cole  v.  Lafontaine,  84  Ind.  446;  given  by  the  administrator.     Cole  v. 

Moore  v.  Moore,  155  Ind.  261,  57  N.  Lafontaine,  84  Ind.  446. 

E.  2:42.  ="  Weakley  v.  Conradt,  56  Ind.  430; 

"Foltz  v.  Wert,  103  Ind.  404,  2  Baker  v.  Griffitt,  83  Ind.  411;  Fiscus 
N.  E.  950 ;  Fiscus  v.  Moore,  121  Ind.  v.  Moore,  121  Ind.  547,  23  N.  E.  362, 
547,  23  N.  E.  362,  7  L.  R.  A.  235.  To  7  L.  R.  A.  235.  An  heir,  who  has 
a  petition  to  sell  real  estate,  an  an-  conveyed  his  interest  in  a  decedent's 
swer  that  the  defendant  was  a  pur-  real  estate,  is  not  a  necessary  party 
chaser  from  an  heir  to  whom  the  to  an  application  by  the  administrator 
land  was  awarded  by  judgment  in  for  an  order  to  sell  such  real  estate, 
partition,  with  the  knowledge  and  and  if  not  a  party  is  not  concluded 
consent  of  the  administrator,  showed  by  the  proceedings.  Piatt  v.  Brick- 
no   estoppel   and   was   bad;   so,   also,  ley,  119  Ind.  2>Z2),  21  N.  E.  906. 


28o  INDIANA    PROBATE    LAW.  §    1 97 

chase-money  nor  defend  against  the  collection  of  any  part  un- 
paid.^^ 

A  purchaser  from  the  heir  of  a  portion  of  the  real  estate  who, 
to  prevent  a  sale  of  the  land,  pays  off  the  indebtedness  of  the 
estate,  is  entitled  to  contribution  from  one  who  has  also  pur- 
chased other  portions  of  the  same  real  estate.  For  where  one 
discharges  a  lien  which  rests  alike  upon  the  property  of  himself 
and  others  he  is  entitled  to  contribution  from  those  whose  prop- 
erty has  been  thus  relieved  from  the  common  burden.  The  lien 
of  the  creditor,  or  rather  his  right  to  have  his  claim  satisfied,  at- 
taches to  the  entire  real  estate  of  the  decedent  and  cannot  be  con- 
fined to  any  particular  portion  of  it.*'" 

Purchasers  of  a  decedent's  real  estate  from  his  heirs  at  law, 
prior  to  the  final  settlement  of  his  estate,  take  it  subject  to  the 
right  of  the  executor  or  administrator  of  such  estate  to  sell  such 
land  for  the  purpose  of  making  assets  for  the  payment  of  the 
debts  of  the  decedent."^  If  the  heirs  of  a  decedent  sell  and  con- 
vey his  land  to  one  who  is  acting  as  administrator  of  such  dece- 
dent's estate,  such  sale,  in  the  absence  of  fraud,  will  be  allowed  to 
stand.     It  is  not  void,  but  voidable,  and  can  only  be  avoided  by 

'"Cartright  v.  Briggs,  41  Ind.  184;  (Ky.)  419,  48  Am.  Dec.  400;  Scherer 

Brimner    v.     Brennan,    49    Ind.    98;  v.  Ingerman,   110  Ind.  428,   11   N.   E. 

Weakley  v.  Conradt,  56  Ind.  430.     In  8,  12  X.  E.  304;  Chaplin  v.  Sullivan, 

a  proceeding  by  an  administrator  to  128  Ind.   50,   27   N.   E.   425.     In  this 

sell  real  estate  to  pay  alleged  claims  last  case  the  court  says :     "The  heirs 

against  the  estate,  the  owner  or  own-  of  the  decedent,  John  Chaplin,  took 

ers  of  the  real  estate  have  the  right,  the   land   left   by   him,   charged  with 

in    order    to    protect     it,     to     defend  the    payment    of     his     debts.       They 

against  the  proceeding,  and  the  claims  could  not  escape  this  liability  if  they 

upon     their    merits,    notwithstanding  wished.      No   one   could   acquire   any 

they  may  have  been  allowed  by  the  rights    in    the    land    superior    to    the 

administrator.     Cole  v.  Lafontaine,  84  right   of   the   creditors   of   the   estate 

Ind.  446;  Jackson  v.  Weaver,  98  Ind.  to    compel    payment    of    their    claim 

307;    Scherer   v.    Ingerman,   110   Ind.  from  the  land  if  the  personal  assets 

428,  11  N.  E.  8,  12  N.  E.  304;  Mac-  should   prove   insufficient." 

key  V.    Ballou,    112   Ind.    198,    13    N.  "nVeakley  v.  Conradt,  56  Ind.  430; 

E.  715;  O'Haleran  v.  O'Haleran,  115  Moncrief   v.   Moncrief,   73   Ind.   587; 

Ind.  493,  17  N.  E.  917.  Baker  v.  Griffitt,  83  Ind.  411;  Miller 

*"Cook  V.  Cook,  92  Ind.  398;  Fal-  v.  Buell,  92  Ind.  482;  Scherer  v.  In- 

ley  V.  Gribling,  128  Ind.  110,  26  N.  E.  german,  110  Ind.  428,  11  N.  E.  8,  12 

794;    Taylor    v.    Taylor,   8    B.    Mon.  N.  E.  304. 


§    198  DISPOSITION    OF    REAL    PROPERTY.  28 1 

parties  interested  in  the  estate  and  who  are  injured  by  such  sale.®- 
It  is  held  in  Piatt  v.  Brickley,  119  Ind.  333,  that  an  heir  who 
has  sold  and  conveyed  his  interest  in  the  land  is  not  a  necessary 
party  to  an  application  by  the  administrator  to  sell  such  land,  and 
yet  it  would  seem  that  where  an  heir  has  sold  out  all  his  interest 
in  the  land  of  the  deceased  ancestor,  while  not  a  necessar}^  party 
himself,  yet  the  purchaser  of  his  interest,  standing  in  the  shoes  of 
such  heir,  ought  to  be  made  a  party,  so  that  he  might  set  up  any 
defense  in  his  own  behalf  that  would  have  been  available  to  his 
grantor. 

§  198.  May  redeem  land,  may  lease  when. — An  adminis- 
trator may,  on  behalf  of  the  estate,  redeem  land  belonging  to  the 
estate,  and  sold  at  sheriff's  sale  on  a  judgment  prior  to  a  mortgage 
held  by  his  decedent  against  the  same  lands. ^^  And  mortgaged 
real  estate  of  a  decedent,  sold  on  a  decree  of  foreclosure  against 
the  heirs  of  such  decedent,  may  be  redeemed  by  his  adminis- 
trator, when  necessar}',  to  make  assets  for  the  payment  of  the 
debts  of  the  estate.  And  such  redemption  will  be  allowed,  al- 
though the  administrator  was  not  a  party  to  the  foreclosure  pro- 
ceedings. 

The  administrator  of  a  deceased  mortgagee  may  join  the  heirs 
in  a  suit  to  redeem  land  from  a  senior  mortgage.*'* 

An  administrator,  for  the  purpose  of  making  assets  to  pay 
debts  of  the  estate,  may  vacate  and  set  aside  a  tax  deed  to  his 

"Carter  v.  Lee,  51  Ind.  292.  property  so  bid  off  is  permitted  to 
■"  Burns'  R.  S.  1908,  §  814.  "While  go  into  the  assets  of  the  estate  with- 
it  is  the  duty  of  an  administrator  to  out  objection  from  any  of  the  parties 
receive  nothing  in  payment  of  a  debt  interested,  and  the  purchase  is  tacitly 
coming  to  the  estate  but  money,  un-  approved  by  the  court's  ordering  the 
less  otherwise  ordered  by  the  court,  property  sold  as  assets  of  the  estate, 
yet  if  he  should  bid  off  property  at  and  it  is  so  sold,  and  the  sale  ap- 
a  sheriff's  sale  under  an  execution  proved  by  the  court,  such  an  irregu- 
upon  a  debt  coming  to  the  estate,  the  larity  in  the  original  sale  would  not 
sale  would  not  be  void.  He  might  require  it  to  be  set  aside  or  held  for 
have  been  held  liable  to  the  heirs  or  naught  in  a  collateral  proceeding." 
creditors  for  the  amount  of  his  bid  Mitchell  v.  Hodges,  87  Ind.  491 ; 
in  money,  or  perhaps  the  sale  might  Whisnand  v.  Small,  65  Ind.  120. 
have  been  set  aside  by  a  direct  pro-  "Lilly  v.  Dunn,  96  Ind.  220. 
ceeding  for  that  purpose.     But  if  the 


282  INDIANA  PROBATE  LAW.  §  I98 

intestate's  real  estate,  and  he  is  not  required  to  pay  or  tender  the 
amount  of  the  taxes  due,  but  may  ask  to  have  the  land  sold  sub- 
ject to  any  valid  claim  of  the  holder  of  the  tax  deed.*^^ 

iVn  administrator  cannot  maintain  an  action  to  enforce  a  re- 
sulting trust,  in  favor  of  his  intestate,  in  lands,  unless  it  is  shown 
that  such  lands  when  reco\'ered  will  be  needed  to  pay  the  debts  of 
such  intestate.^* 

An  administrator  or  executor,  as  such,  has  no  authority  to  take 
possession  of  or  lease  the  real  estate  of  his  decedent,  if  the  heirs 
or  devisees  of  such  decedent  are  present  at  the  time  of  his  death.''' 

The  statute  in  this  state  authorizes  an  executor  or  adminis- 
trator, under  certain  circumstances,  to  take  possession  of  a  de- 
cedent's real  estate,  and,  where  such  possession  has  been  taken,  it 
will  be  presumed  that  it  is  a  legal  possession.  Such  statute 
reads  as  follows:  "If  there  be  no  heirs  or  devisees  of  a  testator 
or  intestate  present  at  the  death  of  the  decedent,  to  take  posses- 
sion of  the  real  estate  left  by  any  such  testator  or  intestate,  the 
executor  or  administrator  of  his  personal  estate  may,  as  trustee 
for  the  proper  heirs  or  devisees,  take  possession  of  such  real 
estate,  and  demand  and  receive  the  rents  and  profits  arising  there- 
from, and  sue  for  and  recover  the  same,  and  do  all  other  acts  re- 
lating to  such  real  estate  which  may  be  for  the  benefit  of  the  per- 
sons entitled  thereto  and  consistent  with  their  rights  and  interest, 
until  the  settlement  of  such  estate,  and  until  the  court  make  fur- 
ther order  in  the  premises.*^  Such  executor  or  administrator  shall 
account  to  such  court  for  any  rents  or  profits  or  use  of  such  prem- 
ises which  he  shall  have  received;  and  the  same  may  be  applied 
to  the  payment  of  the  debts  of  the  decedent  after  the  personal 
property  shall  have  been  exhausted."®^ 

^  Hannah  v.  Collins,  94  Ind.  201.  it  is  needed  for  the  payment  of  debts. 

*"  Matlock  V.   Nave,  28  Ind.  35.  Hochstedler  v.  Hochstedler,  108  Ind. 

^'  Comparet  v.   Randall,  4  Ind.  55 ;  506,  9  N.  E.  467. 

Kidwell  V.  Kidwell,  84  Ind.  224.     An  "'  Burns'  R.   S.   1908,  §   2895 ;   Butt 

executor    or    administrator   can    only  v.   Clark,  23   Ind.   548. 

take  possession  of  the  land  to  the  ex-  *"  Burns'  R.  S.  1908,  §  2896. 
elusion  of  the  heir  or  devisee  when 


199 


DISPOSITION    OF    REAL    PROPERTY.  283 


§  199.    What  real  estate  liable  to  sale.— The  real  estate  ha- 
ble  to  be  sold  for  the  payment  of  debts,  when  the  personal  estate 
shall  be  insufficient  therefor,  shall  include:     First.     All  the  real 
estate  held  or  possessed  by  the  deceased  at  the  time  of  his  death, 
by  legal  or  equitable  title,  except  such  as  was  held  upon  a  contract 
for  the  purchase  of  land,  and  all  interest  in  real  estate  which 
would  descend  to  his  heirs.     Second.    All  school  or  other  lands, 
held  on  a  certificate  of  purchase,  of  the  general  government,  or 
of  the  state  of  Indiana.     Third.     All  lands,  and  any  interest 
therein,  which  the  deceased,  in  his  lifetime,  may  have  transferred, 
with  intent  to  defraud  his  creditors.^"    But  the  lands  thus  fraud- 
ulently conveyed  shall  not  be  taken  from  any  one  who  may  have 
purchased  them  for  a  valuable  consideration  and  without  knowl- 
edge of  the  fraud,  but  such  lands  shall  be  liable  to  be  sold  only  in 
ca^es  in  which  they  would  have  been  liable  to  attachment  and 
execution  by  a  creditor  of  the  deceased  in  his  lifetime;  and  no 
proceeding  by  any  executor  or  administrator  to  sell  any  lands  so 
fraudulently  conveyed  shall  be  maintained  unless  the  same  shall 
be  instituted  within  five  years  after  the  death  of  the  testator  or 

i'n1"P^t"l1"P 

If  the  executor  or  administrator  shall  be  authorized  to  sell  any 
lands  thus  fraudulently  conveyed,  he  may,  before  sale,  obtain 
possession  by  an  action  for  the  possession  thereof,  or  may  file  a 
petition  to  avoid  the  fraudulent  conveyance." 

™  Burns'  R  S  1908,  §  2849.  Lands  in  lands  of  a  decedent  inherited  by 
of  a  decedent  sold  by  his  heirs  be-  a  second  and  childless  wife,  and 
fore  final  settlement  of  the  estate  are  which  at  her  death  descends  to  the 
liable  to  be  sold  to  pay  debts.  Weak-  children  of  a  former  ^^\''^S^' ^J^^l 
ley  V.  Conradt,  56  Ind.  430;  Mon-  liable  to  be  so  d  to  pay  the  debts  of 
crief  V  Moncrief,  73  Ind.  587;  Baker  the  decedent.  Wmdell  v  Tro  ter,  127 
V  Griffitt,  83  Ind.  411;  Scherer  v.  Ind.  332,  26  N.  E.  823;  Armstrong  v. 
Ingerman  110  Ind.  428,  11  N.  E.  8,  Cavitt,  78  Ind.  476.  Lands  conveyed 
12  N  E  304.  The  real  estate  of  a  as  a  gift,  and  which  may  revert  to 
member  of  the  Ma-to-sin-ia  band  of  the  grantor  on  the  death  «  the  gran- 
Indians,  derived  by  act  of  congress  tee  without  issue,  may  be  sold  o  pay 
of  1872,  may  be  sold  to  pay  his  debts,  the  debts  of  the  g-"tee.  W^ngate 
except  such  as  the  act  of  congress  v.  James,  121  1"^  69^  22  N^  E.  735. 
provides  shall  not  be  enforced  against  Burns  R.  S.  1908,  ^  ^U. 
such  land.  Taylor  v.  Vandegrift,  126  '=  Burns'  R.  S.  1908,  §  2851. 
Ind.  325,  25  N.  E.  548.     The  interest 


284  INDIANA  PROBATE  LAW.  §  199 

Any  estate  or  interest  in  land,  which  at  the  death  of  the  owner 
descends  to  his  heirs,  unless  expressly  or  by  necessary  implication 
otherwise  provided  by  statute,  is  liable  to  sale  for  the  payment  of 
the  owner's  debts. 

All  the  property,  both  real  and  personal,  the  legal  or  equitable 
title  to  which  is  in  a  man  at  the  time  of  his  death,  becomes  liable 
in  the  hands  of  his  executor  or  administrator  for  the  debts  of 
such  decedent.  The  power  of  the  executor  or  administrator  over 
the  real  estate,  with  few  exceptions,  is  limited  to  the  one  purpose 
of  making  assets  for  the  payment  of  the  debts  of  the  estate.  For 
this  purpose  he  may  sell  such  real  estate,  and  the  statute  specifies 
very  clearly  what  may  be  sold. 

From  the  reading  of  this  statute  it  is  apparent  that  it  is  broad 
enough  to  cover  any  vested  interest  a  deceased  person  may  have 
in  land  at  the  time  of  his  death. "^  The  equity  of  redemption  the 
deceased  debtor  may  have  in  lands  under  mortgage  is  subject  to 
sale  whether  such  mortgage  has  been  foreclosed  or  not.'^*  As  the 
right  of  the  administrator  to  sell  lands  of  his  decedent  rests  upon 
the  need  he  has  to  make  assets  for  the  payment  of  debts,  his 
power  to  sell  is  limited  to  so  much  only  of  the  land  as  is  necessary 
for  that  purpose.'^ 

The  general  rule  is  that  any  interest  in  land,  whether  legal  or 
equitable,  in  possession  or  reversion,  including  inchoate  equities, 
is  liable  for  the  debts  of  the  owner,  and  after  his  death  may  be 
sold  if  necessary  to  make  assets  for  the  payment  of  his  debts.^® 

Where  a  devise  is  made  to  one  and  the  will  provides  that  the 
lands  included  in  such  devise  shall  be  charged  with  the  payment 
of  all  the  claims  against  the  estate  of  the  testator,  the  other  real 
estate  devised  to  other  devisees  is  not  thereby  released  from  lia- 
bility for  sale  in  the  event  the  land  charged  with  the  debts  proves 
not  sufficient  for  their  payment.^^ 

"Windell  V.  Trotter,   127  Ind.  332,  "Newcomer    v.    Wallace,    30    Ind. 

26  N.  E.  823;  Wingate  v.  James,  121  216:     Brown     v.     Rose,     6     Blackf. 

Ind.  69,  22  N.  E.  735.  (Ind.)   69. 

'*Kenley    v.    Bryan,    110    111.    652;  "Woerner      Am.      Law      Admin., 

Diehl's  Appeal,  33  Pa.  St.  406;  Biggs  §  471. 

V.  Bickel,  12  Ohio  St.  49;  Boiling  v.  "Duncan  v.  Gainey,  108  Ind.  579. 
Jones,  67  Ala.  508. 


200 


DISPOSITION    OF    REAL    PROPERTY.  285 


Where  real  estate  is  held  by  husband  and  wife  as  joint  tenants 
by  entireties,  at  the  death  of  the  husband  the  title  to  the  whole 
estate  vests  in  his  wife.  He  has  no  estate  in  such  land  as  will 
descend  to  his  heirs,  nor  be  made  liable  to  sale  by  his  executor  or 
administrator  for  the  payment  of  his  debts." 

§  200.  Property  fraudulently  conveyed  by  decedent. — Any 
transfer  of  property  in  fraud  of  the  rights  of  creditors  is  void  as 
to  them,  though  valid  and  binding  as  to  the  parties  to  such  con- 
veyance. If  the  administrator  or  executor  represented  only  the 
decedent  he  would  have  no  right  to  impeach  any  conveyance  of 
his  decedent  for  fraud,  but  as  he  is  also  the  representative  of  the 
creditors  and  in  a  sense  a  trustee  for  them,  he  would,  even  in  the 
absence  of  any  statute,  perhaps  have  the  right  to  assail  a  fraudu- 
lent conveyance  made  by  the  decedent  in  his  lifetime.  But  he 
would  never  be  allowed  to  recover  the  property  for  the  benefit  of 
the  heir  or  devisee. 

In  an  action  by  the  executor  or  administrator  of  a  decedent  to 
set  aside  a  fraudulent  conveyance  of  property,  either  real  or  per- 
sonal, it  is  necessary  for  him  to  show  that  he  needs  such  property 
to  pay  the  debts  of  the  estate.  Such  recovery  is  only  allowed  for 
this  purpose.    He  cannot  recover  such  property  for  the  heirs.'^ 

While  the  statute  gives  authority  to  an  administrator  to  bring 
a  separate  action  to  set  aside  a  fraudulent  conveyance,  yet  econ- 
omy would  dictate  that  he  should  settle   such  question   in  his 

"  Simpson    v.    Pearson,    31    Ind.    1,  tion  there  was  no  other  property  of 

99  Am.  Dec.  577.  the  decedent  with  which  to  pay  his 

■'  Hess  V.  Hess,  19  Ind.  238 ;  Mat-  debts.  Such  action  must  be  com- 
lock  V.  Nave,  28  Ind.  35;  Garner  v.  menced  within  five  years  after  the 
Graves,  54  Ind.  188.  An  adminis-  death  of  the  decedent.  Cox  v.  Hun- 
trator  may  have  a  fraudulent  con-  ter,  79  Ind.  590 ;  Cook  v.  Chambers, 
veyance  set  aside  before  applying  for  107  Ind.  67,  8  X.  E.  10.  If  a  person 
an  order  to  sell  the  same  when  he  purchases  lands  with  his  own  means 
shows  that  he  will  be  entitled  to  such  and  causes  the  same  to  be  conveyed 
order  on  the  conveyance  being  set  aside,  to  another  for  the  purpose  of  de- 
Love  v.  Mikals,  11  Ind.  227.  The  com-  frauding  his  creditors,  such  lands 
plaint  to  set  aside  a  fraudulent  convey-  may  be  subjected  to  the  payment  of 
ance  must  allege  that  at  the  time  of  his  debts  after  his  death.  Bushnell 
the  conveyance  and  death  of  the  de-  v.  Bushnell.  88  Ind.  403. 
cedent  and  commencement  of  the  ac- 


286 


INDIANA    PROBATE    LAW. 


§    200 


application  to  sell  the  land  for  the  payment  of  debts,  and  not  to 
incur  the  unnecessary  exj^ense  of  prosecuting  two  suits  to  the 
same  purpose.^" 

As  a  rule,  a  man  has  the  right  to  sell,  transfer  or  give  away  his 
property  in  any  manner  he  deems  fit.  But  where  such  sale,  gift 
or  transfer,  either  of  real  or  personal  property,  is  made  with  in- 
tent to  defraud  his  creditors,  and  the  person  to  whom  such  sale, 
gift  or  transfer  is  made  has  knowledge  of  such  fraudulent  intent, 
the  transfer  to  such  person  will  be  void,  although  he  may  have 
paid  an  adequate  consideration  for  the  property  so  transferred. 
And  after  the  death  of  the  grantor  such  transfer  may  be  set  aside 
upon  the  application  of  his  executor  or  administrator  for  the  pur- 
pose of  subjecting  such  property  to  sale  for  the  payment  of  the 
debts  of  such  grantor."  The  question  of  fraudulent  intent  is  one 
of  fact  and  not  of  legal  inference  or  presumption.  And  a  con- 
veyance is  not  fraudulent  as  to  creditors  simply  because  it  is  not 


'"Galentine  v.  Wood,  137  Ind.  532, 
35  N.  E.  901.  "The  complaint  before 
us  is  against  all  the  parties  and  con- 
tains all  the  necessary  allegations  to 
entitle  the  appellee  to  sell  the  land 
therein  described  to  make  assets  for 
the  payment  of  the  debts  due  from 
the  estate  represented  by  him.  In- 
deed, we  have  no  doubt  that  the 
complaint  proceeds  upon  the  theory 
that  the  appellee  was  entitled  to  an 
order  in  this  action  for  the  sale  of 
the  land  therein  described,  and  that 
the  setting  aside  of  the  fraudulent 
conveyances  referred  to  was  a  mere 
incident.  Such  a  theory  is  not  only 
outlined  in  the  complaint,  but  we 
further  find  that  the  heirs  of  the 
decedent  are  made  parties  to  the  pro- 
ceedings, which  would  not  have  been 
necessary  if  the  only  purpose  of  the 
suit  was  to  set  aside  a  fraudulent 
conveyance.  Furthermore,  the  action 
is  prosecuted  in  the  circuit  court 
granting  the  letters  of  administra- 
tion, while  the  land  described  in  the 


complaint  is  situate  in  another  coun- 
ty. Nor  do  we  think  any  valid  ob- 
jection can  be  urged  against  the 
practice  here  adopted." 

"'Love  V.  Mikals,  11  Ind.  227; 
Martin  v.  Bolton,  75  Ind.  295; 
Wright  V.  Brandis,  1  Ind.  336;  Rog- 
ers V.  Evans,  3  Ind.  574,  56  Am. 
Dec.  537;  Lipperd  v.  Edwards,  39 
Ind.  165.  An  administrator  de  bonis 
non,  who  has  obtained  a  judgment 
against  his  insolvent  predecessor  and 
his  sureties  for  the  conversion  by 
the  former  of  the  assets  of  the  es- 
tate, may,  without  proceeding  to  col- 
lect such  judgment  from  the  sure- 
tics,  and  without  alleging  that  there 
arc  unpaid  claims  against  the  estate, 
maintain  an  action  to  set  aside  a  con- 
veyance, which  the  defaulting  admin- 
istrator had  fraudulently  made  to  his 
children,  of  land  purchased  by  him 
with  the  trust  funds,  and  to  subject 
such  land  to  the  satisfaction  of  the 
judgment  lien.  Duffy  v.  State,  ex 
rel.,  115  Ind.  351,  17  N.  E.  615. 


201 


DISPOSITION    OF    REAL    PROPERTY.  28/ 


founded  upon  a  valuable  consideration;  something  more  than  this 
must  be  shown  to  vacate  such  deed  or  conveyance.  The  party 
seeking  to  set  aside  such  conveyance  must  allege  and  prove  such 
other  facts  and  circumstances  in  addition  to  the  want  of  a  valu- 
able consideration  to  make  out  his  case.  It  is  necessary  to  charge 
in  the  complaint  and  prove  on  the  trial  that,  at  the  time  the  con- 
veyance was  made,  the  debtor  did  not  have  enough  other  property 
left,  subject  to  execution,  to  pay  all  his  debts. ^^ 

In  the  case  of  Sherman  v.  Hogland,  54  Ind.  578,  the  Supreme 
Court  says :    "We  do  not  think  it  sufficient  to  charge  that,  some 
months  or  years  after  the  conveyance  was  executed,  no  other 
property  could  be  found  on  which  to  levy  an  execution,  or  that, 
at  some  subsequent  time,  it  was  ascertained  that  the  debtor  had 
become  wholly  insolvent.    To  constitute  the  conveyance  a  fraud- 
ulent one  it  must  be  made  so  by  the  facts  and  circumstances  con- 
nected with  it,  as  they  existed  at  the  time  of  its  execution,  and 
not  by  any  subsequent  misconduct  or  misfortune  of  the  grantor. 
No  matter  how  bad  the  intention  of  a  debtor  may,  in  point  of 
fact,  have  been  in  making  a  voluntary  conveyance,  still  if  he  had 
sufficient  other  property  remaining,  subject  to  execution,  to  pay 
all  his  debts,  his  creditors,  in  legal  contemplation,  are  not  injured 
by  this  bad  intention  simply  and  have  no  right  of  action  to  set 
aside  such  conveyance.    It  is  only  when  an  inadequate  amount  of 
property  remains  that  creditors  have  the  legal  right  to  complain." 
The  court,  upon  sustaining  objections  to  the  settlement  of  an 
estate  as  insolvent,  denied  the  petition  of  the  administrator  and 
upon  a  showing  by  the  objectors  the  court  ordered  the  adminis- 
trator to  bring  a  proceeding  to  avoid   fraudulent  conveyances 
made  by  the  intestate  during  life.*^ 

§  201.  Same— Suit  by  creditor.— The  creditor  of  a  dece- 
dent may  maintain  an  action  to  set  aside  a  fraudulent  conveyance 
made  by  such  decedent  in  his  lifetime,  and  to  subject  lands  so 

"Pence    v.     Croan,    51     Ind.    2,?>6;  Brubaker,    150    Ind.    260,    49    N.    K 

Sherman    v.    Hogland,    54    Ind.    578;  1050. 

State  V.  Parsons,  147  Ind.  579,  47  N.  « Cray    v.    Wright,    16    Ind.    App, 

E.    17,    62    Am.    St.    430;    Jarrell    v.  258,  44  X.  E.  1009. 


288  INDIANA  PROBATE  LAW.  §  20I 

conveyed  to  the  payment  of  the  debts  of  such  decedent.  It  is 
true  the  statute  does  not  authorize  such  an  action  by  a  creditor, 
but  it  has  been  decided  the  right  exists  independent  of  the  statute, 
and  that  the  remedy  given  by  the  statute  to  an  executor  or  admin- 
istrator is  simply  cumulative.®'*  The  action  may  be  maintained 
by  a  single  creditor,  and  if  he  is  successful  the  fruits  of  such 
action  inure  to  the  benefit  of  all  the  creditors  of  the  estate.  The 
purpose  of  such  action  is  simply  to  vacate  the  sale,  so  that  the 
land  may  become  assets  for  the  payment  of  the  debts  of  the  dece- 
dent. After  such  fraudulent  conveyance  is  so  set  aside,  the  estate 
is  settled  by  the  executor  or  administrator  in  the  usual  way.®^ 
The  title  to  lands  fraudulently  conveyed  is  in  the  purchaser,  and 
not  in  the  heirs  of  the  vendor;  and  such  lands,  as  between  the 
purchaser  and  such  vendor  or  his  heirs,  belong  to  the  purchaser. 
He  holds  them  subject  to  the  claims  of  the  vendor's  creditors,  and 
they  may  be  sold  to  satisfy  such  claims;  but,  if  sold,  and  the  pro- 
ceeds of  the  sale  exceed  the  amount  of  the  debt,  the  excess  be- 
longs to  the  purchaser,  and  not  to  the  heirs  of  the  vendor.®" 

'*  Bottorff   V.    Covert,   90    Ind.   508;  and  where,  in  such  action,  it  appears 

Tyler  v.  Wilkerson,  20  Ind.  473.     A  from   the   complaint   that,   more  than 

single  creditor,  as  well  as  an  admin-  three  years   prior   to  the   commence- 

istrator    or    an    executor,    may  main-  ment  of  such  action,  the  debtor's  es- 

tain  an  action  to  set  aside  a  sale  of  tate  had  been  finally  settled,  in  due 

lands  fraudulently  made  by  a  deceased  course    of    administration,    and    that 

debtor.   A  creditor  of  a  decedent  may  such    settlement    remains    unrevoked, 

maintain  an  action  to  have  a  fraud-  the  action  cannot  be  maintained,  and 

ulent  conveyance  of  the  decedent  set  the    complaint    is    insufficient.      Even 

aside,  when  the  lands  may  be  sold  to  if    such    settlement    had    been    made 

pay    debts.      BottorfF    v.    Covert,    90  within  less  than  three  years  prior  to 

Ind.   508.     An   action   to   set   aside   a  the  commencement  of  such  action,  as 

conveyance  as  fraudulent  will  not  lie  long    as    it    remains    unrevoked    such 

after    a    final    settlement    so    long    as  action  will  not  lie.     Vestal  v.   Allen, 

such     settlement     remains     in     force.  94  Ind.  268. 

Vestal  v.  Allen,  94  Ind.  268.  '"  Bottorff   v.    Covert,   90   Ind.    508. 

^Bottorff  v.  Covert,  90  Ind.  508;  While  a  creditor  may,  during  the 
Wilson  v.  Davis,  37  Ind.  141.  In  an  life  of  his  debtor,  in  one  action,  re- 
action by  a  judgment  creditor  against  cover  judgment  for  the  debt,  and, 
the  heirs  of  a  deceased  insolvent  without  regard  to  the  claims  of  oth- 
debtor,  to  set  aside  an  alleged  fraud-  er  creditors,  may  have  that  judg- 
iilent  conveyance  by  the  debtor  to  ment  enforced  by  the  sale  of  prop- 
said  heirs,  the  debtor's  administrator  erty  fraudulently  conveyed  by  the 
is    a    necessar}^   party   to   the    action;  debtor,  yet  when  the  debtor  has  died. 


§    202  DISPOSITION    OF    REAL    PROPERTY.  289 

In  an  action  brought  by  creditors  to  set  aside  a  fraudulent  con- 
veyance made  by  a  deceased  debtor  in  his  Hfetime  the  heirs  of 
such  decedent  are  necessary  parties.^' 

§  202.  Same — When  suit  must  be  brought. — Where  one 
purchases  real  estate  with  his  own  means,  and  to  defraud  his 
creditors  causes  the  conveyance  to  be  made  to  another,  it  is  a 
fraudulent  transfer  within  the  meaning  of  this  statute.  And  the 
executor  or  administrator  of  such  purchaser  may  maintain  an  ac- 
tion to  sell  the  lands  so  fraudulently  transferred  by  his  decedent 
in  his  lifetime;  but  he  cannot  maintain  such  proceeding  unless  the 
action  is  instituted  within  five  years  after  the  death  of  the  testator 
or  intestate.  The  right  of  such  executor  or  administrator  to 
maintain  such  action  is  purely  statutory;  and  the  statute  requires 
that  this  right  shall  be  exercised  within  five  years  after  the  death 
of  the  decedent.  After  the  lapse  of  five  years  no  such  right 
exists,  so  far  as  such  executor  or  administrator  is  concerned.*^ 
Where  a  statute  of  limitation  merely  bars  a  remedy  which  exists 
independent  of  the  statute,  it  must,  as  a  rule,  be  pleaded;  but 
where  a  right,  which  is  not  of  common  law  origin,  is  given  by  a 
statute  which  prescribes  the  time  within  which  proceedings  to 
enforce  such  right  must  be  commenced,  it  should  appear  by  an 
averment  in  the  complaint  to  enforce  such  right  that  the  time 
limited  had  not  expired,  otherwise  such  complaint  would  not 
withstand  a  demurrer  thereto  for  the  want  of  sufficient  facts. ^® 

and    no    administrator    of    his    estate  Hays  v.  Montgomery,  118  Ind.  91,  20 

has  been  appointed,   such   relief  can-  N.  E.  646. 

not  be  had  by  a  suit  of  the  creditor  ^  Leard    v.    Leard,    30    Ind.     171; 

against  the  fraudulent  grantee.    Carr  Cook  v.  Chambers,  107  Ind.  67,  8  N. 

V.  Huette,  1Z  Ind.  378;  Voorhees  v.  E.  10;  Bruker  v.  Kelsey,  72  Ind.  51; 

Carpenter,  127  Ind.  300,  26  N.  E.  838.  Baugh  v.  Boles,  35  Ind.  524. 

A   single   creditor   may  maintain   the  ^  Cox     v.     Hunter,     79    Ind.     590 ; 

action,  and  after  the  sale  is  set  aside  Bushnell    v.    Bushnell,    88    Ind.    403 ; 

the  land  becomes  assets  in  the  hands  Cook  v.  Chambers,  107  Ind.  67,  8  N. 

of    the     administrator     or     executor,  E.   10.    An  action  by  an  executor  or 

who    thereafter    settles    the   estate   in  administrator    to    sell    lands    fraudu- 

the  usual  way.     Willis  v.  Thompson,  lently  conveyed  by  his  testator  or  in- 

93  Ind.  62 ;   Vestal  v.   Allen,  94  Ind.  testate  in  his  lifetime  must  be  com- 

268.  menced   within    five   years    after    the 

''Caress    v.    Foster,    62    Ind.    145;  death  of  the  decedent.     Cox  v.  Hun- 

19— Pro.  Law. 


290 


INDIANA    PROBATE    LAW.  §    20$ 


An  executor  or  administrator  may  maintain  proceedings  to  set 
aside  a  fraudulent  conveyance  of  property,  made  by  his  decedent 
in  his  lifetime,  before  procuring  an  order  to  sell  the  same.  It  can 
make  no  material  difference  whether  the  order  for  sale  does  or 
does  not  precede  the  suit  to  set  aside  the  conveyance,  if  the  execu- 
tor or  administrator,  in  his  complaint  for  that  purpose,  shows  that 
upon  a  decree  setting  it  aside  he  will  be  entitled  to  the  order  to 
sell,  and  this  he  may  do  by  the  proper  averments  in  his  complaint 
as  to  the  insufficiency  of  the  personal  property  to  pay  the  liabilities 
of  the  estate.^"  As  he  can  only  have  the  deed  avoided  prelim- 
inary to  the  institution  of  a  proceeding  to  sell,  in  order  to  make 
assets  to  pay  debts,  it  is  manifest  if  the  preliminar}^  step  is  de- 
layed until  after  the  right  to  institute  a  proceeding  to  sue  is  barred 
by  the  statute  of  limitations,  the  right  to  maintain  proceedings  to 
avoid  the  deed  is  also  barred. °^ 

A  party  to  a  voidable  sale  of  land  by  an  administrator  is  also 
barred  by  the  five  years'  statute  of  limitations.''- 

If  the  complaint  to  set  aside  a  fraudulent  conveyance  shows  on 
its  face  that  the  decedent  has  been  dead  for  five  years,  the  com- 
plaint should  be  held  bad  on  demurrer."^ 

As  soon  as  the  administrator  is  satisfied  of  the  fact  that  there 
is  a  deficiency  of  assets  it  is  his  duty  to  bring  an  action  to  recover 
property  fraudulently  conveyed  even  before  the  exact  amount  of 
such  deficiency  is  ascertained.^* 

§  203.  Who  may  apply  to  sell  land,  and  when. — An  appli- 
cation to  sell  real  estate  of  a  decedent  to  make  assets  for  the  pay- 
ment of  his  debts  can  only  be  made  by  his  executor  or  adminis- 
trator, and  a  sale,  when  ordered,  can  only  be  made  by  such  officer. 
But  if  the  executor  or  administrator  neglects  or  refuses  to  file 
such  application  he  may  be  compelled  to  act  upon  the  petition  of 

ter,  79   Ind.   590;   Bushnell  v.   Bush-  ''"  Palmerton  v.   Hoop,   131  Ind.  23, 

nell,  88  Ind.  403;  Cook  v.  Chambers,  30  X.  E.  874. 

107  Ind.  67,  8  N.  E.  10.  ''Cook  v.    Chambers,    107   Ind.   67, 

^Love  V.'  Mikals,  11  Ind.  227;  Ty-  8  N.  E.  10. 

ler  V.  Wilkerson,  27  Ind.  450.  ''*  Andrew   v.    Hinderman,    71    Wis. 

"  Cook  V.  Chambers,  107  Ind.  67,  8  148,  36  N.  W.  624. 
N.  E.  10. 


§    203  DISPOSITION    OF    REAL    PROPERTY.  29 1 

any  creditor  of  the  estate  whose  claim  has  been  filed  and  al- 
lowed.^^ 

The  statute  provides  that  whenever  an  executor  or  adminis- 
trator shall  discover  that  the  personal  estate  of  a  decedent  is  in- 
sufficient to  satisfy  the  liabilities  thereof,  he  shall,  without  delay, 
file  his  petition  in  the  circuit  court  issuing  his  letters,  for  the  sale 
of  the  real  estate  of  the  deceased,  to  make  assets  for  the  payment 
of  such  liabilities.®^ 

It  is  not  necessary  that  there  should  be  judgments  or  allow- 
ances against  the  estate,  to  justify  an  application  on  the  part  of 
an  executor  or  administrator  to  sell  the  real  estate  of  his  dece- 
dent ;  it  is  sufficient  to  show  that  the  personal  property  is  not  suffi- 
cient to  pay  the  indebtedness  of  the  estate.®' 

The  fact  that  the  personal  assets  belonging  to  the  estate,  suffi- 
cient to  pay  all  the  debts  of  such  estate,  came  into  possession  of 
the  first  administrator,  and  were  by  him  wasted,  and  he  and  his 
sureties  afterward  became  insolvent,  is  no  defense  for  the  heirs 
against  the  petition  of  an  administrator  de  bonis  non  to  sell  real 
estate  of  the  decedent  to  pay  the  debts  of  the  estate;  such  loss 
falls  upon  the  heirs  and  not  upon  the  estate.®^  An  answer  by  one 
interested  to  a  petition  of  an  executor  or  administrator  to  sell 
real  estate  to  pay  debts,  that  there  is  sufficient  personal  property 
to  pay  all  the  just  debts  against  the  estate,  is  good.®® 

Before  this  statute  took  its  present  form,  exclusive  jurisdiction 

**  Burns'  R.  S.  1908,  §  2859.  Ind.   442,  65  Am.   Dec.   740;   Cole  v. 

"' Burns'    R.    S.    1908,    §  2852,    Dit-  Lafontaine,  84   Ind.   446;    Scherer   v. 

ton  V.  Hart,  —  Ind.  —  95  N.  E.  119.  Ingerman,   110  Ind.  428,   11   N.  E.  8, 

"'Love  V.  Mikals,  11  Ind.  227;  Ty-  12   N.   E.  304;   O'Haleran  v.   O'Hal- 

ler  V.  Wilkerson,  27  Ind.  450;  Garner  eran,  115  Ind.  493,  17  N.  E.  917.   The 

V.     Graves,     54    Ind.     188;     Carr    v.  court  of  common  pleas  had  jurisdic- 

Huette,  IZ  Ind.  378;   Martin  v.  Bol-  tion  to   try  and  determine  the  ques- 

ton,  75  Ind.  295.     The  real  estate  of  tion  of  title  to  land  sought  to  be  sold 

a    decedent    cannot    be    sold    to    pay  by    an    administrator    to    pay    debts, 

debts    unless    the    personal    estate    is  Lantz  v.   Maffett,   102  Ind.  23,  26  N. 

insufficient.      Newcomer    v.    Wallace,  E.    195;    Langsdale    v.    Woolen,    120 

30  Ind.  216;  Edwards  v.  Haverstick,  Ind.  78,  21  N.  E.  541. 

47  Ind.  138.     In  such  proceedings  the  "« Nettleton  v.  Dixon,  2  Ind.  446. 

heirs,  etc.,  may  show  that  there  are  ^  Hunter  v.  French,  86  Ind.  320. 
no  debts  to  pay.     Riser  v.  Snoddy,  7 


292  INDIANA  PROBATE  LAW.  §  203 

in  proceedings  to  sell  real  estate  was  held  to  be  in  the  court  grant- 
ing the  letters.^  Later  this  case  was  overruled,  the  court  holding 
that  jurisdiction  was  either  in  the  county  where  letters  were 
granted,  or  in  the  county  where  the  land  to  be  sold  was  situated. ■ 
But  under  this  section  of  the  statute,  it  is  now  clear  that  the  cir- 
cuit court,  which  issues  the  letters  testamentary  or  letters  of  ad- 
ministration upon  the  estates  of  decedents,  has  exclusive  original 
jurisdiction  of  a  petition  for  the  sale  of  his  decedent's  real  estate, 
in  whatever  county  the  same  may  be  situate,  for  the  payment  of 
the  liabilities  of  such  decedent's  estate.^ 

Exclusive  jurisdiction  is  conferred  upon  the  court  to  order  the 
sale  of  a  decedent's  real  estate,  and  the  power  to  make  the  order 
carries  with  it  the  right  to  determine  the  title  to  such  real  estate. "* 

A  foreign  executor  or  administrator  may  procure  an  order  for 
that  purpose  and  make  a  sale  of  his  decedent's  lands  in  this  state, 
in  the  same  manner  and  upon  the  same  terms  as  one  appointed  in 
the  state,  and  if  the  bond  he  has  given  in  the  state  where  his  ap- 
pointment is  made  is  deemed  by  the  court  of  this  state  sufficient, 
such  executor  or  administrator  shall  not  be  required  to  file  any 
additional  bond  here.^ 

A  sale  of  land  under  an  order  procured  by  a  foreign  executor 
cannot  be  attacked  collaterally  on  the  ground  that  such  executor 

^Ex  parte  Shockley,  14  Ind.  413.  'Burns'  R.   S.   1908,   §§  2881,  2884, 

=  Williamson  v.   Miles,  25   Ind.  55;  ante,    §§  28,    29;    Rapp    v.    Matthias, 

Jones  V.  Levi,  72  Ind.  586.  35  Ind.  332;  Stafford  v.  Davidson,  47 

*Vail  V.  Rinehart,  105  Ind.  6,  4  N.  Ind.    319.      A    foreign    executor    can 

E.  218.  only    sell    and    convey    lands    in    this 

^Wolcott    v.    Wigton,    7    Ind.    44;  state  by  complying  with  the  laws  of 

Fleming    v.     Potter,     14     Ind.     486;  this  state.     Lucas  v.  Tucker,  17  Ind. 

Simpson    v.    Pearson,    31    Ind.    1,    99  41.     A   foreign  executor  or  adminis- 

Am.  Dec.  577.     And  when  the  court  trator   may   procure   a   sale   of   lands 

has    jurisdiction    over    the    subject-  in    the    same   manner   and  upon   the 

matter  and   the   parties   interested,   a  same  terms  as  one  appointed  in  this 

judgment     ordering    a    sale    of    the  state;  and  if  he  show  his  bond  given 

land   cannot  be  collaterally   attacked,  to  be  already  sufficient,  need  file  no 

Armstrong    v.    Cavitt,    78    Ind.    476;  other.      Rapp    v.    Matthias,    35    Ind. 

Pepper    v.    Zahnsinger,    94    Ind.    88;  332. 
Meikel  v.   Borders,   129  Ind.  529,  29 
N.  E.  29. 


§    203  DISPOSITION    OF    REAL    PROPERTY.  293 

did  not  comply  with  the  statute  regulating  the  filing  and  record- 
ing of  copies  of  foreign  wills.** 

An  executor's  or  administrator's  right  to  institute  proceedings 
to  sell  real  estate  of  his  decedent  for  the  payment  of  his  debts  is 
barred  by  the  statute  of  limitations  aftei*  the  expiration  of  fifteen 
years  from  the  time  the  cause  of  action  accrues,  and  such  pro- 
ceeding is  so  far  a  civil  action  that  a  party  may  have  a  change  of 
venue  from  the  judge  upon  a  proper  application.'^ 

The  statute  does  not,  however,  begin  to  run  until  the  executor 
or  administrator  discovers  the  insufficiency  of  the  personal  estate 
and  that  it  will  be  necessary  to  sell  land  to  pay  debts.* 

Where,  in  a  proper  case,  an  executor  or  administrator  attempts 
to  make  assets  for  the  payment  of  legacies  by  the  sale  of  the  de- 
cedent's real  estate,  he  must  begin  proceedings  therefor  within 
fifteen  years." 

If  debts  have  been  established  against  the  estate,  and  the  per- 
sonal assets  in  the  hands  of  the  executor  or  administrator  are  in- 
sufficient for  their  payment,  such  representative  should  promptly 

"Bailey  v.  Rinker,  146  Ind.  129,  45  State  v.  Younts,  89  Ind.  313;  Hogan 

X.  E.  38.  V.  Robinson,  94  Ind.  138. 

'Scherer    v.     Ingerman,     110     Ind.         *Witz  v.  Dale,  129  Ind.  120,  Zl  N. 

428,  11   X.  E.  8,  12  X.  E.  304.     The  E.    498.      As    is    said    in    this    case: 

statute   of   limitations   is   a   good  de-  "There  must  certainly  be  some  limit 

fense  to  a  petition  to  sell  lands.    Cole  to    the    time   within    which    a    legacy 

V.  Lafontaine,  84  Ind.  446.  can    be   enforced,   where,   as    is    true 

^Falley  v.  Gribling,  128  Ind.  110,  here,  no  trust  exists,  and  that  limit 
26  X.  E.  794.  In  this  case  it  is  said:  is  fixed  by  the  statute  to  which  we 
"The  statute  of  limitations  must  be  have  referred,  inasmuch  as  it  is  com- 
pleaded  and  is  not  available  on  de-  prehensive  in  its  terms,  and  embraces 
murrer,  unless  it  affirmatively  ap-  all  cases  for  which  no  specific  pro- 
pears  that  the  case  is  not  within  any  vision  is  made.  Repose  is  the  object 
of  the  exceptions  to  the  statute;  and  of  our  entire  system  of  limitation, 
a  demurrer  raises  no  question  under  and  to  prevent  a  break  in  the  system, 
the  statute  of  limitations,  where  the  by  providing  for  all  cases  not  other- 
pleading  demurred  to  does  not  show  wise  provided  for,  was  the  manifest 
affirmatively  that  the  case  is  not  purpose  of  the  legislature  in  enacting 
within  any  of  the  exceptions  to  the  the  general  statute.  So  all  our  deci- 
statute,"  citing  Devor  v.  Rerick,  87  sions  indicate,  and  this  the  repose  of 
Ind.  ZZl  \  Thompson  v.  Parker,  83  society  as  well  as  the  security  of 
Ind.  96:  Wilson  v.  Ensworth,  85  Ind.  titles,  demands." 
399;  Lucas  v.  Labertue,  88  Ind.  277; 


294  INDIANA  PROBATE  LAW.  8  2O4 

apply  for  the  sale  of  the  real  estate,  and  if  he  neglects  to  do  so 
he  should  be  compelled  to  do  so  by  some  creditor,  the  heirs,  or 
even  by  the  court  of  its  own  motion. 

§  204.  Requisites  of  petition — The  statute. — Such  petition 
shall  be  entitled  with  the  names  of  the  parties,  petitioner  and  de- 
fendants, and  the  court  in  which  pending.  If  the  deceased  died 
intestate,  his  widow,  if  any,  and  his  other  heirs,  shall  be  made 
defendants;  if  he  died  testate,  his  widow,  if  any,  and  his  devisees, 
shall  be  made  defendants;  provided,  that  if  he  died  intestate  as  to 
any  portion  of  his  real  estate,  his  heirs  shall  also  be  made  de- 
fendants. The  holder  of  every  lien  on  the  real  estate  which  the 
executor  or  administrator  shall  have  reason  to  deem  invalid  or 
discharged,  in  whole  or  in  part  (except  taxes  and  judgments  and 
mortgages  in  favor  of  the  state  of  Indiana),  shall  be  made  de- 
fendants to  every  such  petition,  and  may  be  proceeded  against  by 
the  name  or  style  by  which  he  or  they  may  be  designated  in  the 
record  or  instrument  constituting  such  lien.  Any  person  claiming 
an  interest  in  or  a  lien  upon  any  of  the  real  estate  may  also  be 
made  a  defendant.  If  the  names  of  any  of  the  heirs  or  devisees 
of  the  deceased  be  unknown  to  the  petitioner,  such  fact  shall  be 
stated  in  the  petition ;  and  they  may  be  proceeded  against  as  the 
unknown  heirs  and  devisees  of  the  deceased.  The  petition  shall 
set  forth  a  description  of  the  real  estate  of  the  deceased  liable  to 
be  made  assets  for  the  payment  of  his  debts;  the  title  of  the  de- 
cedent therein  at  his  death,  and  the  probable  value  thereof  exclu- 
sive of  liens;  the  amount  of  the  personal  estate  of  the  decedent 
which  has  come  to  the  possession  or  knowledge  of  the  executor 
or  administrator;  the  amount  of  the  claims  filed  and  allowed 
against  the  estate;  the  amount  of  claims  filed  and  pending  against 
the  estate;  the  particulars  of  each  lien,  whether  general  or  special, 
including  taxes  accrued  at  the  death  of  the  decedent,  and  judg- 
ments and  mortgages,  due  and  owing  to  the  state,  upon  all  or  any 
of  the  decedent's  real  estate,  appearing  and  remaining  unsatisfied 
of  record;  with  the  amount  and  date  of  liens  and  names  of  the 
holders,  as  the  same  appear  of  record.  If  the  decedent  shall  have 
died  testate,  and  his  will  shall  contain  any  provision  for  the  dis- 


§    205  DISPOSITION    OF    REAL    PROPERTY.  295 

position  of  his  estate  for  the  payment  of  debts  dififerent  from  the 
manner  which  the  law  prescribes  in  case  of  intestacy,  such  pro- 
vision shall  be  set  forth  in  the  petition.  Such  petition  shall  be 
verified  by  the  oath  of  the  executor  or  administrator  filing  the 
same.^*^ 

§  205.  Who  should  be  made  parties. — The  statute  declares 
who  are  necessary  parties  to  the  petition  of  an  administrator  or 
executor  to  sell  lands  of  his  decedent,  and  who  are  proper  par- 
ties. 

It  is  necessary  to  make  the  heirs  parties  to  a  petition  by  the 
executor  or  administrator  to  sell  the  ancestor's  land  to  pay  debts, 
for  in  no  other  way  can  their  title  to  such  land  be  divested ;"  and 
such  heirs  should  be  named  individually  in  the  petition,  if  their 
names  be  known.  Merely  referring  to  them  in  a  general  way  as 
"heirs"  of  the  deceased  is  not  sulftcient.  There  is  no  such  thing 
as  an  adversary  proceeding  in  court  against  a  party  without 
naming  him,  unless  it  be  in  some  special  case  where  the  statute 
authorizes  a  proceeding  against  unknown  heirs.''  But  an  heir 
who  has  conveyed  his  interest  in  a  decedent's  real  estate  is  not  a 
necessary  party  to  an  application  to  sell  real  estate.'^ 

In  the  event  the  executor  or  administrator  does  not  seek  to  sell 
the  land  of  his  decedent  free  from  liens,  then  only  such  lien- 
holders  whose  liens  he  may  have  reason  to  believe  are  invalid  or 
have  been  discharged  in  whole  or  in  part  may  and  should  be  made 

'^  Burns'  R.  S.  1908,  §  2854 ;  Hamp-  seized,  as  heir,  and  not  by  virtue  of 

ton  V.  Murphy,  45  Ind.  App.  513,  86  her  marital  rights.     She  is  a  proper 

N    E    436,  88  N.   E.   876;   Maris  v.  party  to  a  petition  to  sell  real  estate 

Wolfe   46  ind.  App.  416.  for    the    payment    of    the    decedent's 

"Wood  V  Wood,  150  Ind.  600,  50  debts.  Smock  v.  Reichwine,  117  Ind. 
N.  E.  573;  Sherry  v.  Denn,  8  Blackf.  194,  19  N.  E.  116.  "The  administrator 
(Ind.)  542.  Where  persons  are  made  cannot  intervene  in  an  action  for 
parties  to  a  proceeding  as  heirs  of  partition  between  heirs,  and  secure 
one  person  the  judgment  of  sale  will  an  order  to  sell  the  land  for  the  pay- 
not  bar  their  rights  as  heirs  of  an-  ment  of  debts.  Douthitt  v.  Smith,  69 
other   person.     Elliott  v.    Frakes,   71  Ind.  463. 

Ind   412;  see  Bumb  v.  Card,  107  Ind.         ^^  Guy  v.   Pierson,  21   Ind.   18. 
575,  8  N.  E.  713.  The  widow  takes  the        ^^  Piatt  v.  Brickley,  119  Ind.  333,  21 

interest  that  the  law  gives  her  in  the  N.  E.  906. 
real  estate  of  which  her  husband  dies 


296  INDIANA  PROBATE  LAW.  §  206 

parties  to  the  proceeding.  Holders  of  valid  liens,  or  the  persons 
claiming  an  interest  in,  or  a  lien  upon,  the  lands,  may  at  the  in- 
stance of  the  executor  or  administrator,  or  upon  their  own  appli- 
cation, be  made  parties  to  the  proceedings.  They  are,  however, 
not  necessary  parties  in  order  to  give  the  court  jurisdiction  to 
order  the  sale  of  the  land  and  to  pass  the  title  of  the  decedent  to 
the  purchaser  at  the  sale  made  upon  such  order. ^^ 

The  statute  makes  it  the  duty  of  an  executor  or  administrator, 
before  filing  such  petition,  to  carefully  examine  the  offices  of  the 
clerk,  auditor,  treasurer,  and  recorder  in  each  county  in  which 
real  estate  of  the  deceased  may  be  situate,  and  ascertain  the  exact 
character  and  extent  of  each  lien  thereon  created  or  suffered  by 
the  deceased  in  his  lifetime,  and  remaining  unsatisfied  of  record. ^^ 
Any  person  not  a  party  to  such  petition  may,  upon  proper  peti- 
tion, be  admitted  as  a  party  to  the  proceedings,  and  set  up  any 
interest  in  or  lien  upon  the  land,  and  have  the  same  heard  and 
determined. ^^  And  a  lienholder  who  has  been  made  a  party  to 
such  petition  and  who  is  properly  ser^-ed  with  process,  who  ap- 
pears and  pleads  to  such  petition,  but  fails  to  set  up  or  assert  any 
claim  to  or  lien  upon  such  land,  is  estopped  by  a  judgment  on 
such  petition  ordering  the  sale  of  such  land  to  afterwards  enforce 
such  lien,  though  the  land  is  sold  under  such  order  without  pro- 
viding in  any  manner  for  the  payment  of  such  lien.^' 

§  206.  What  issues  petition  tenders. — In  this  state  the  real 
and  personal  estate  of  a  decedent  are  equally  chargeable  with  the 
payment  of  his  debts,  but  the  real  estate  only  becomes  assets 
when  the  personal  estate  has  been  exhausted  or  is  shown  to  be 
insufficient  for  the  payment  of  debts. ^^ 

The  issue  tendered  the  heirs  by  the  petition  is  the  allegation  of 
indebtedness  and  the  right  of  the  executor  or  administrator  to 
sell  the  land.  The  latter  depends  upon  the  ownership  of  the  de- 
cedent in  and  to  such  land,  and  of  necessity  involves  the  question 

"  Wood  V.  Wood,  150  Ind.  600,  50  '-'  Vail  v.  Rinehart,  105  Ind.  6,  4  N. 
N.  E.  573.  E.  218;   Kaufman  v.   Elder,  154  Ind. 

^Burns'  R.  S.  1908,  §  2853.  157,  56  N.  E.  215;   Crum  v.   Meeks, 

"  Burns'  R.  S.  1908,  §  2860.  128  Ind.  360,  27  X.  E.  722. 

^  Moore  v.  Moore,  155  Ind.  261,  57 


§    206  DISPOSITION    OF    REAL    PROPERTY.  29/ 

of  his  title  to  the  land.  If  the  petition  alleges  that  he  died  the 
owner  in  fee  of  the  land,  when  in  fact  he  did  not,  and  this  allega- 
tion is  not,  at  the  time  of  the  hearing  upon  such  petition,  contro- 
verted by  the  heirs,  and  the  court  finds,  although  erroneously,  in 
favor  of  the  administrator,  and  orders  the  sale  of  the  land,  such 
order,  so  long  as  it  stands,  will  conclude  the  heirs  from  setting  up 
title  to  the  land,  and  it  is  not  subject  to  a  collateral  attack.  It  has 
all  the  binding  force  and  effect  of  a  judgment  until  set  aside  in  a 
direct  proceeding  brought  for  that  purpose." 

The  statute  requires  that  the  executor  or  administrator  shall 
allege  in  the  petition  to  sell  what  title  the  decedent  had  in  the  land 
at  the  time  of  his  death.  It  requires  the  court  to  inquire  into  the 
truth  of  the  facts  set  forth  in  the  petition :  and  for  that  purpose 
the  executor  or  administrator  may  be  examined  under  oath,  wit- 
nesses compelled  to  attend  and  testify,  and  depositions  taken 
touching  the  same  under  the  usual  regulations  of  law.  The 
statute  contemplates  a  trial  of  all  the  facts  alleged  in  tlie  petition ; 
that  the  statements  may  be  denied  or  confessed  and  avoided :  that 
issues  of  law  and  fact  may  be  formed  and  tried.  And  whether 
the  allegations  are  denied  or  not  the  court  ought  to  be  satisfied 
that  the  facts  set  forth  in  the  petition  are  true  before  it  grants  the 
order  of  sale.-° 

AMiere  an  heir,  having  full  knowledge  that  all  the  estate  in  the 
land  has  been  sold  on  the  petition  of  an  administrator,  receives 

X.  E.  242:  Fiscus  v.  Moore,  121  Ind.  224.      The    petition    must    name    the 

547.  23  X.  E.  362,  7  L.  R.  A.  235.  heirs    if    known,    otherwise    no    pre- 

^*Lantz  V.  Maffett,  102  Ind.  23,  26  sumption  of  jurisdiction  arises.    Guy 

X.   E.   195;   Bumb  v.   Card,   107  Ind.  v.  Pierson,  21  Ind.  18.     The  petition 

575,   S    X.    E.    713.     A    change    from  must   set   forth   facts   which   show   a 

the  judge  is  permitted  in  such  pro-  necessity  for  a  sale.    Renner  v.  Ross, 

ceedings.     Scherer  v.   Ingerman,    110  111   Ind.  269,  12  X.  E.  508.     An  ad- 

Ind.  428.   11   X.   E.  8,  12  X.   E.  304.  ministrator  is  not  entitled  to  an  or- 

Proof  of  the  decedent's  title  is  nee-  der  for  the  sale  of  an  amount  of  real 

essar\-  where  it  is  questioned.     Jack-  estate  in  excess  of  what  is  necessarj- 

son  V.  Weaver,  98  Ind.  307;  Bennett  to    pay    the    debts    of    the    decedent. 

V.  Gaddis,  79  Ind.  347.  Fralich    v.    Moore,    123    Ind.    75,   24 

^  Gavin   v.   Graydon,   41    Ind.   559;  X'.    E.   232.     Under   our   statute  the 

Riser  v.  Snoddy.  7  Ind.  442,  65  Am.  land  of  a  decedent  is  subject  to  be 
Dec.    740;    Martin    v.    Starr,    7    Ind. 


298  INDIANA  PROBATE  LAW.  §  206 

and  retains  the  purchase-money  remaining  after  the  payment  of 
the  debts  of  the  estate,  he  cannot  avoid  the  sale.  He  cannot  have 
both  the  money  and  the  land.-^ 

Such  petition  must  be  verified.  This  verification  may  be 
waived,  and  where  the  defendants  appear  and  contest  the  pro- 
ceedings, such  waiver  will  be  presumed."" 

An  executor  or  administrator  who  petitions  the  court  for  an 
order  to  sell  lands  to  pay  his  decedent's  debts  is  only  required  to 
make  out  a  prima  facie  case,  and  while  a  judgment  on  a  claim 
against  the  estate  of  such  decedent  is  conclusive  as  to  the  personal 
property  of  the  decedent,  it  is  only  prima  facie  as  to  the  real 
estate  and  does  not  affect  the  heirs  or  devisees." 

The  description  of  lands  in  the  petition  of  an  executor  or  ad- 
ministrator for  the  sale  of  real  estate  should  be  reasonably  certain 
and  should  name  the  county  and  state  in  which  such  lands  are 
situated,"*  for  the  reason  that  where  a  misdescription  of  the  lands 
in  the  petition  is  carried  into  the  order  of  sale,  the  deed  can- 
not afterward  be  reformed  and  such  mistake  corrected."^ 

sold  by  an  executor  or  administrator  "^Jackson  v.   Weaver,  98  Ind.  307; 

to  make  assets  with  which  to  pay  the  Cole    v.     Lafontaine,    84     Ind.     446; 

expenses    of    administration.      Falley  Scherer    v.    Ingerman,    110    Ind.    428, 

V.    Gribling,   128   Ind.    110,  26  N.   E.  11  N.  E.  8,  12  N.  E.  304. 

794.  '*Weed  v.  Edmonds,  4  Ind.  468. 

"■'  Bumb  V.  Card,  107  Ind.  575,  8  N.  "■'  Walton  v.  Cox,  67  Ind.  164 ;  An- 
E.  713.  Where  lands  are  sold  under  gle  v.  Speer,  66  Ind.  488.  In  Rogers 
the  court's  order  and  the  proceedings  v.  Abbott,  37  Ind.  138,  it  is  said:  "If 
on  their  face  appear  valid  the  heirs,  the  mistake  was  in  the  deed  only, 
in  an  action  to  recover  the  land  from  perhaps  it  might  be  corrected  in  this 
an  innocent  purchaser,  cannot  con-  way.  But  if  we  should  correct  the 
tradict  the  record.  Worthington  v.  deed  and  attempt  to  vest  in  the  plain- 
Dunkin.  41  Ind.  515.  Where  an  heir,  tiflf  the  title  to  the  tract  of  land 
having  full  knowledge  that  the  whole  which  he  claims,  we  should  give  him 
estate  in  the  land  has  been  sold  on  land  which  was  not  ordered  by  the 
petition  of  the  administrator,  re-  court  to  be  sold,  nor  advertised  by 
ceives  and  retains  the  purchase-  the  sheriff,  nor  sold  by  him,  nor  pur- 
money  remaining  after  the  payment  chased  by  the  plaintiff."  "The  diffi- 
of  debts,  he  cannot  avoid  the  sale,  culty  arises  out  of  the  facts  that  the 
Elliott  v.  Frakes,  71  Ind.  412,  distin-  judgment  directing  the  sale  *  *  * 
•guished;  Palmerton  v.  Hoop,  131  and  the  advertisement,  appraisement 
Ind.  23.  30  N.  E.  874.  *     *     *     and    the    sale    and    convey- 

"Weed  V.  Edmonds,  4  Ind.  468.  ance     thereof,     *     *     *     each     desig- 


§    20/  OISPOSITION    OF    REAL    PROPERTY.  299 

The  statute  prescribes  specially  how  lands  of  a  decedent  may 
be  sold  by  his  executors  or  administrators  for  the  payment  of  his 
debts.  There  is  no  other  mode  and  there  is  no  other  authority 
under  which  executors  or  administrators  can  come  into  any  other 
suit  and  by  cross-complaint  secure  from  the  court  an  order  to  sell 
lands.-** 

The  petition  of  an  executor  or  administrator  for  an  order  to 
sell  real  estate  of  his  decedent  to  pay  his  debts  need  not  contain 
a  particular  description  of  such  debts,  a  statement  of  their  aggre- 
gate being  sufficient.-^  And  upon  such  petition  the  court  should 
not  order  the  sale  of  more  land  than  is  necessary  for  the  pay- 
ment of  such  debts,  unless  the  land  remaining  unsold  would  be 
greatly  injured  thereby.-^  Where  any  portion  of  the  land  has 
been  sold  and  converted  into  assets  by  such  executor  or  adminis- 
trator under  an  order  of  court,  no  other  land  of  the  estate  can  be 
ordered  sold  until  such  assets  have  been  exhausted.-^ 

An  application  by  one  acting  as  administrator,  but  who  has  not 
been  legally  qualified,  should  not  be  entertained.  The  court  can 
take  no  jurisdiction  in  such  case,  and  if  it  should  and  an  order  of 
sale  is  made  on  such  application  and  the  property  sold,  such  sale 
would  be  void.^*' 

§  207.  The  proceeding  sui  generis. — An  application  by  an 
executor  or  administrator  to  sell  lands  in  due  course  of  adminis- 

nated  and  described  another  piece  or  stated  only  generally  in  the  petition, 

tract  of  land  than  that  intended,  and  Jackson  v.  Weaver,  98  Ind.  307. 

of     which     possession     was     taken."  "  Collins   v.   Farnsworth,   8  Blackf. 

Miller    v.    Kolb,    47    Ind.    220;    First  (Ind.)    575.     Such   application  is  not 

Nat.    Bank    &c.    v.    Gough,    61    Ind.  a   civil   action.     Seward  v.   Clark,  Q 

147;    Taylor    v.    Fleet,    4    Barb.    (N.  Ind.  289.     See   Scherer  v.   Ingerman, 

Y.)  95.  110   Ind.  428,   11   N.   E.  8,   12  N.  E. 

="  Clayton    v.    Blough,    93    Ind.    85.  304. 

A  sale  is  permitted  only  in  case  of  "*  Black  v.  IMeek,   1   Ind.   180 ;  Fra- 

its    necessity,    and    the    administrator  lich  v.  Aloore,  123  Ind.  75,  24  N.  E. 

in  his  petition  must  state  such   facts  232. 

as    show    clearly   that    such   necessity  ^  Brown  v.  Rose,  6  Blackf.    (Ind.) 

exists.      Renner    v.    Ross,    111    Ind.  69. 

269,    12   X.   E.  508 ;   First  Nat.   Bank  '» Pryor  v.  Downey,  50  Cal.  388,  19 

V.  Hanna,  12  Ind.  App.  240,  39  N.  E.  Am.  Rep.  656:  Whitesides  v.  Barber, 

1054.      The    decedent's    title    need   be  24  S.  Car.  Zll. 


300  INDIANA  PROBATE  LAW.  §  20/ 

tration  stands  upon  the  footing  of  an  ordinary  adversary  judicial 
proceeding  in  a  court  of  superior  jurisdiction.  And  where  juris- 
diction has  been  acquired  in  such  a  proceeding,  subsequent  errors, 
however  grave  and  glaring,  would  not  subject  the  judgment  to  a 
successful  collateral  attack. ^^  Such  application,  whether  made  by 
the  executors,  administrators  or  creditors  of  a  decedent,  is  not  a 
civil  action.  The  proceedings  are  strictly  sui  generis;  and  in 
every  step  in  the  progress  thereof  until  the  final  determination, 
they  must  be  governed  and  controlled  by  the  statutory  provisions 
which  are  expressly  applicable  thereto.^"  The  sale  of  a  dece- 
dent's real  estate  by  his  executor  or  administrator  is  provided  for 
and  regulated  exclusively  by  the  act  for  the  settlement  of  dece- 
dents' estates.  The  civil  code  makes  no  provision  for  such  pro- 
ceedings, and  they  are  not  within  the  ordinary  common-law  juris- 
diction of  the  circuit  court. ^^ 

But  while  this  is  true,  it  will  be  noticed  that  in  many  regards 
the  act  for  the  settlement  of  decedents'  estates  does  not  provide  a 
complete  code  of  procedure,  and  where  a  complete  mode  of  pro- 
cedure is  not  provided  heed  must  be  had  to  the  civil  code.  A 
proceeding  to  sell  real  estate  to  pay  debts  is  but  an  incident  to  the 
settlement  of  the  estate.  No  independent  action  can  be  main- 
tained for  that  purpose,  and  though  some  of  the  rules  of  the  civil 
code  as  to  pleading  and  practice  must  often  be  applied,  yet  such  a 
proceeding  is  not  a  civil  action. 

But  the  reasoning  of  the  Supreme  Court  in  a  recent  case  goes 
far  toward  establishing  the  fact  that  proceedings  by  adminis- 
trators and  executors  to  sell  real  estate  of  their  decedents  to  pay 
debts  are  civil  actions.  Before  the  opinion  in  this  case  was 
handed  down,  it  had  been  held  that  as  the  act  for  the  settlement 
of  decedents'  estates  does  not  provide  for  a  change  of  venue  from 
the  judge  that  the  civil  code  may  be  looked  to,  and  that  proceed- 
ings to  sell  lands  to  pay  debts  are  so  far  civil  proceedings  as  to 

^'^Spaulding    v.     Baldwin,    31     Ind.         =' Rinehart  v.  Vail,   103  Ind.   159,  2 

376;   Williams  v.   Sharp,  2  Ind.   101;  N.  E.  330;  Tippecanoe  Loan  &c.  Co. 

Gavin  v.  Graydon,  41  Ind.  559;  De-  v.   Carr,  40  Ind.  App.   125,  78  N.   E. 

quindre  v.   Williams,  31  Ind.   444.  1043. 

''  Seward  v.  Clark,  67  Ind.  289. 


207 


DISPOSITION    OF    REAL    PROPERTY. 


301 


justify  a  change  of  judge  upon  a  proper  application.^*  But  the 
appellate  court  had  decided  that  no  change  of  venue  from  the 
county  was  permissible  in  such  a  proceeding/ °  Yet  the  Supreme 
Court,  in  the  same  case,  upon  the  same  facts,  says :  "Since  the 
authority  to  change  the  venue  from  the  judge,  and  that  to  change 
the  venue  from  the  county,  are  derived  from  the  same  statute,  it 
would  seem  that  the  authority  to  change  from  the  county  exists 
whenever  there  is  authority  to  change  from  the  judge.  In  a  pro- 
ceeding to  sell  real  estate,  the  title  may  be  litigated,  a  fraudulent 
conveyance  may  be  set  aside,  and  many  issues  may  be  required 
to  be  tried  therein  of  a  nature  which  clearly  characterizes  them 
as  issues  in  civil  actions.  We  therefore  conclude  that,  upon  a 
proper  and  timely  application,  a  change  of  venue  from  the  county 
in  which  the  estate  may  be  pending  for  settlement  may  be  taken. 
If  reasons  exist  making  such  practice  unwise,  the  legislature  may 
prohibit  it."''' 


=*  Scherer  v.  Ingerman,  110  Ind. 
428,  11  X.  E.  8,  12  N.  E.  304;  Ever- 
road  V.  Lewis,  16  Ind.  App.  65,  43  N. 
E.  1010. 

"  Daniels  v.  Bruce,  —  Ind.  App. 
— ,  93  N.  E.  675. 

=°  Daniels  v.  Bruce,  —  Ind.  — ,  95 
N.  E.  569. 

"The  decedents'  estates  act  by  its 
terms  neither  grants  nor  withholds 
the  right  to  a  change  of  venue  from 
the  county  or  a  change  of  judge; 
it  is  as  silent  as  to  this  as  it  is  in 
many  other  matters  of  practice  nec- 
essary in  carrying  out  all  of  the 
objects  of  the  statute,  except  as  it 
is  provided  in  §  121  (Burns  1908, 
§  2863)  that  the  hearing  in  certain 
particulars  shall  be  conducted  as  in 
other  cases. 

"It  has  been  held  that  a  drainage 
proceeding,  which  is  quite  as  much 
a  special  statutory  proceeding  and 
sui  juris  as  a  proceeding  by  an  ad- 
ministrator to  sell  real  estate,  is  so 
far   a  civil   action  that  the  act  pro- 


viding for  a  change  of  venue  (Burns 
1908,  §  422)  is  applicable  to  it.  Bass 
v.  Elliott,  105  Ind.  517,  5  N.  E.  663. 
And  such  act  is  held  applicable  to 
a  proceeding  for  the  appointment  of 
a  guardian  for  a  person  of  unsound 
mind.  Berry  v.  Berry,  147  Ind.  176, 
46  N.  E.  470.  And  in  proceedings 
to  contest  an  election.  Weakley  v. 
Wolf,  148  Ind.  208,  47  N.  E.  466. 
And  in  proceedings  supplementary 
to  execution.  Burkett  v.  Bowen,  104 
Ind.  184,  3  N.  E.  768.  And  in  a 
proceeding  to  disbar  an  attorney.  In 
re  Darrow,  —  Ind.  — ,  92  N.  E.  369. 
See,  also,  Jaseph  v.  Schnepper,  1 
Ind.  App.  154,  27  N.  E.  305 ;  McCon- 
ahey's  Estate  v.  Foster,  21  Ind.  App. 
416,  52  N.  E.  619;  Goodbub  v.  Hor- 
nung,  127  Ind.  181,  26  N.  E.  770. 

"Furthermore,  it  is  settled  that  a 
claim  against  a  decedent's  estate  is 
a  civil  action  within  the  meaning  of 
the  above  statute  relating  to  a 
change  of  venue  (Lester  v.  Lester, 
Executor,  70  Ind.  201),  and  that  the 


302 


INDIANA    PROBATE    LAW.  §    2o8 


§  208.  Petition  by  creditor. — If,  when  the  personal  estate 
is  found  to  be  insufficient  for  the  payment  of  debts,  the  executor 
or  administrator  neglects  or  refuses  to  proceed  to  make  assets  by 
a  sale  of  the  real  estate,  the  statute  provides  that  any  creditor  of 
the  decedent,  whose  claim  shall  have  been  filed  and  allowed  by 
the  court,  may  file  his  petition  showing  the  insufficiency  of  the 
personal  estate  of  the  decedent  to  pay  the  liabilities  thereof,  and 
that  the  decedent  died  the  owner  of  real  estate  liable  to  be  made 
assets  for  the  payment  of  his  debts,  and  praying  an  order  requir- 
ing the  executor  or  administrator  to  proceed  to  sell  such  real 
estate  for  the  payment  of  such  debts.  The  executor  or  adminis- 
trator shall  be  entitled  to  five  days'  written  notice  of  the  petition 
and  the  time  when  it  will  be  presented  for  hearing.  If,  upon  such 
hearing,  the  petition  be  found  by  the  court  to  be  true,  and  no 
cause  be  shown  to  the  contrary,  the  court  shall  order  the  executor 
or  administrator,  within  a  reasonable  time,  to  be  fixed  by  the 
court,  to  prepare  and  file  his  petition  for  the  sale  of  such  real 
estate,  and  in  default  of  his  so  doing  the  court  shall  remove  him 
from  his  trust  and  appoint  a  successor,  unless  good  cause  be 
shown  for  the  delay,  when  further  time  may  be  granted,  with 
like  consequence  upon  de fault. ^^ 

Such  petition  should  make  the  executor  or  administrator  a 
party,  and  if  no  executor  or  administrator  has  been  appointed, 
such  fact  should  be  shown  by  the  petition ;  and  as  the  sale  prayed 
for  in  such  petition  can  only  be  made  by  an  executor  or  adminis- 
trator, it  would  be  better  practice  for  the  creditor  to  secure  the 
appointment  of  an  administrator  prior  to  the  filing  of  his  petition. 
And  such  petition  should  also  show  that  the  personal  estate  of  the 
decedent  is  exhausted  or  that  it  is  insufficient  for  the  payment  of 

same   statute  is   applicable  to   a  pro-  to   act   in   the   matter.     Whisnand   v. 

ceeding   by    an    administrator   to    sell  Small,    65     Ind.     120.      This     section 

real    estate.       Scherer    v.    Ingerman,  does  not  apply  to  lands  conveyed  by 

Administrator,  110  Ind.  428,  11  N.  E.  the  decedent  to  defraud  his  creditors. 

8,  12  N.  E.  304."  Bottorflf  v.   Covert,  90  Ind.   508.     If 

"'  Burns'  R.    S.   1908,   §  2859.     The  a  sale  is  ordered  it  must  be  made  by 

petition     of     a     creditor    under    this  the  executor  or  administrator.    Whis- 

section  need  not  allege  that  the   ex-  nand  v.  Small,  65  Ind.  120. 
ecutor  or   administrator  has   refused 


§    20g  DISPOSITION    OF    REAL    PROPERTY.  303 

his  debts.  This  is  necessary,  for  the  reason  that  the  personal 
property  of  a  decedent  is  the  primary  fund  out  of  which  his  debts 
are  to  be  paid.^*  But  such  petition  need  not  aver  that  the  execu- 
tor or  administrator  has  refused  to  act.  The  sale  is  not  to  be 
made  by  the  creditor,  but  by  the  executor  or  administrator,  under 
the  same  regulations  as  if  such  application  had  been  made  by  such 
executor  or  administrator,^® 

This  statute  does  not  apply  to  lands  which  have  been  fraudu- 
lently conveyed,  but  to  such  as  were  owned  by  the  decedent  at  the 
time  of  his  death.  Therefore,  in  an  action  brought  by  a  creditor 
to  set  aside  a  fraudulent  conveyance  of  real  estate  made  by  the 
decedent  in  his  lifetime,  a  court  cannot  make  an  order  requiring 
the  executor  or  administrator  to  sell  such  land  to  make  assets  for 
the  payment  of  debts.  This  must  be  done  in  another  proceeding 
brought  for  that  purpose.*" 

§  209.  What  is  necessary  to  jurisdiction. — In  order  to  give 
validity  to  the  proceedings  of  courts,  they  must  have  jurisdiction 
of  the  parties,  and  of  the  subject-matter.  Jurisdiction  of  the 
parties  can  only  be  acquired  by  summons,  notice,  or  the  appear- 
ance of  the  party  in  person  or  by  attorney.  If  the  court  acquires 
no  jurisdiction  of  a  party,  its  proceedings  cannot  affect  the  rights 
of  that  party;  therefore,  where,  upon  the  application  of  an  ex- 
ecutor or  administrator  to  sell  real  estate,  the  court  orders  a  sale, 
which  is  made  and  confirmed,  without  notice  to  the  heirs,  or  their 
appearance  to  such  proceeding,  such  sale  is  void.  No  one  is 
bound  by  proceedings,  which  he  has  had  no  opportunity  to  de- 
fend against.*^ 

^MVhitney  v.   Kimball,  4  Ind.   546,  be    presumed.       Doe    v.     Harvey,    3 

58  Am.  Dec.  638.  Ind.  104;  Doe  v.  Anderson,  5  Ind.  33. 

^Whisnand  v.   Small,  65   Ind.    120.  But  if  the  fact  appears  from  the  rec- 

*"  Bottorff  V.  Covert,  90  Ind.  508.  ord  that  the  heirs  did  not  have  no- 

^^  Gerrard  v.  Johnson,  12  Ind.  636;  tice,   the   sale   •will  be   void.     Babbitt 

Martin  v.   Neal,   125  Ind.  547,  25   N.  v.  Doe,  4  Ind.  355 ;  Martin  v.  Starr, 

E.  813;   Guy  v.  Pierson,  21  Ind.   18;  7   Ind.   224;    Doe   v.    Bowen,   8    Ind. 

Hawkins  v.  Hawkins,  28  Ind.  66.    A  197,  65  Am.  Dec.  758.     Where  lands 

sale    will    not   be    held    void    because  are   situated   in   different   counties,   it 

the   record  does   not   show  notice   to  is    only    necessary   to    give    notice   in 

the   heirs.     In   such   case  notice  will  the  county  where  the  estate  is  pend- 


304 


INDIANA    PROBATE    LAW. 


209 


Where  there  is  no  proof  of  notice  filed,  and  the  record  is  silent 
as  to  whether  notice  was  given  or  not,  the  presumption  will  be, 
unless  the  contrary  is  shown,  that  the  proper  notice  was  given. 
The  record  of  a  court  of  general  jurisdiction  need  not  affirma- 
tively show  the  facts  which  give  it  jurisdiction.*-  But  such  pre- 
sumption will  not  be  indulged  against  the  direct  admission  of  the 
record  that  no  notice  was  given. *^ 

Where  the  facts  disclosed  by  the  record  are  such  as  not  to  nec- 
essarily exclude  the  inference  that  notice  was  given  to  the  de- 
fendants of  the  pendency  of  the  application,  notice  will  be  pre- 
sumed to  have  been  given.**  But  the  rule  that,  where  the  record 
is  silent  upon  the  point  of  notice,  notice  will  be  presumed,  only 
applies  in  cases  where  the  heirs  or  devisees  have  been  made  par- 
ties to  the  record.  Where  no  mention  is  made  of  the  existence  of 
an  heir,  no  notice  can  be  presumed  that  the  heir  was  notified.  In 
such  case  the  record  is  not  silent,  but  speaks  negatively,  and  in 
such  case  the  sale  by  the  administrator  is  void.*^     In  any  case,  an 


ing  for  settlement.  Gavin  v.  Gray- 
don.  41  Ind.  559. 

"  Doe  V.  Harvey,  3  Ind.  104 ;  Gavin 
V.  Graydon,  41  Ind.  559;  Crane  v. 
Kimmer,  11  Ind.  215 ;  Sims  v.  Gay, 
109  Ind.  501,  9  N.  E.  120;  Langsdale 
V.  Woollen,  120  Ind.  78, 21  N.  E.  541 ; 
Clark  v.  Hillis,  134  Ind.  421,  34  N.  E. 
13. 

^^  Doe  V.  Anderson,  5  Ind.  33.  If 
an  heir  of  the  decedent  die  after  no- 
tice given  him  of  the  commencement 
by  the  administrator  of  proceedings 
to  sell  real  estate  to  pay  debts  of  the 
estate,  and  a  sale  thereafter  takes 
place  without  any  further  notice  (or 
any  suggestion  of  the  death  of  such 
heir),  and  is  affirmed,  such  sale  is 
valid,  and  the  heirs  of  such  heir  can- 
not attack  its  validity.  Palmerton  v. 
Hoop,    131    Ind.    23,    30    N.    E.    874. 

Where    notice    was    given    to    

Clark,  and  other  heirs  expressly 
named,  such  proceeding  is  not  bind- 


ing upon  Helen  I.  Clark,  she  being 
an  heir  and  not  expressly  named  in 
the  notice.  As  to  her  such  proceed- 
ing is  void  and  may  be  attacked  col- 
laterally. Clark  V.  Hillis,  134  Ind. 
421,  34  N.  E.  13. 

"Hawkins  v.   Ragan,  20  Ind.   193 
Hawkins    v.    Hawkins,    28    Ind.    66 
Xicholson   v.    Stephens,  47  Ind.    185 
Anderson  v.   Spence,  72  Ind.  315,  Zl 
Am.  Rep.   162;  Carver  v.  Carver,  64 
Ind.   194.     After  verdict,  no  question 
as    to   the   parties    defendant    can   be 
first  made  in  such  a  case;   so,  also, 
as  to  an  averment  that  the  adminis- 
trator  knows   of  no   liens   or   claims 
except   such  as   are   stated.     Jackson 
v.  Weaver,  98  Ind.  307. 

*'Doe  v.  Bowen,  8  Ind.  197,  65 
Am.  Dec.  758;  Martin  v.  Starr,  7 
Ind.  224 ;  Gerrard  v.  Johnson,  12  Ind. 
636;    Hawkins   v.    Hawkins,   28   Ind. 


§    2IO  DISPOSITION    OF    REAL    PROPERTY.  305 

order  of  sale  which  is  made  without  notice  or  an  appearance  is 
invaHd,  and  a  sale  made  under  such  order  is  void,  and  ejectment 
will  lie  to  recover  the  land  sold.^^ 

If  an  heir  die  after  notice  of  the  proceeding  by  the  adminis- 
trator to  sell  real  estate,  an  order  and  sale  made  thereafter  and 
confirmed  without  further  notice  or  suggestion  of  the  death  of 
the  heir,  such  sale  is  valid.*^ 

Notice  may  be  issued  by  the  clerk  in  vacation.''*  When  the 
notice  is  published,  it  must  be  published  in  some  newspaper  in 
the  county  where  the  petition  is  pending,  if  any  there  be.*" 

Whenever  the  administrator  seeks  to  subject  the  real  estate 
which  has  descended  to  the  heirs  to  sale  for  the  payment  of  the 
debts  of  the  ancestor,  he  assumes  a  position  antagonistic  to  them 
and  no  longer  represents  the  heirs,  so  before  he  can  obtain  any 
valid  order  divesting  them  of  their  title  they  must  have  an  oppor- 
tunity to  be  heard  and  to  contest,  not  only  the  necessity  of  the 
sale,  but  the  justice  and  validity  of  the  debts  for  the  payment  of 
which  the  sale  is  demanded. °" 

§  210.  What  notice  required. — As  in  ordinary  adversary 
proceedings,  there  must  be  some  kind  of  notice  to,  or  a  voluntary 
appearance  of,  all  who  are  necessary  parties  defendant  to  the 
petition  of  an  executor  or  administrator  to  sell  real  estate  of  his 
decedent  to  make  assets  for  the  payment  of  debts.  As  to  such 
notice  the  statutes  provide,  "that  whenever  any  executor  or  ad- 
ministrator of  any  decedent's  estate  shall  have  filed  in  the  proper 
court  a  petition  for  the  purpose  of  procuring  an  order  for  the 
sale  of  real  estate  for  the  purpose  of  paying  the  debts  of  such 
decedent's  estate,  that  notice  of  the  pendency  of  the  petition  and 
of  the  time  and  place  of  hearing  the  same  shall  be  served  upon 
the  defendants,  personally,  at  least  ten  days  before  the  time  set 
for  the  hearing  of  the  same,  unless  it  appear  from  the  petition  or 
affidavit  filed  therewith  that  the  names  or  the  residences  of  any 

"Babbitt  v.  Doe,  4  Ind.  355;  Cox  '' Palmerton  v.  Hoop,  131  Ind.  23, 
V.    Matthews,    17    Ind.    367;    Guy   v.     30  X.  E.  874. 

Pierson,  21   Ind.   18;   Crane  v.  Kim-        *' Shepherd  v.  Fisher,   17  Ind.  229. 
mer,  11  Ind.  215.  *'  Gavin  v.  Graydon,  41  Ind.  559. 

^  Woerner  Am.  Law   Admin.,  §  466. 

20— Pro.  Law. 


306  INDIANA    PROBATE    LAW.  §    211 

of  them  are  unknown,  or  that  any  of  them  are  nonresidents  of 
this  state ;  in  which  case  such  notice  shall  be  given  by  publication, 
for  three  weeks  successively,  in  some  public  newspaper  published 
in  the  county  in  which  the  administration  of  the  estate  is  pend- 
ing, if  any  be  published  therein,  and  if  not  then  in  some  public 
newspaper  published  nearest  thereto  in  this  state,  at  least  ten  days 
before  the  time  set  for  hearing  the  said  petition.  The  notices 
herein  provided  for  shall  be  issued  by  the  clerk  of  the  court  and 
attested  by  his  signature  and  the  seal  of  the  court."^^ 

§211.  When  notice  may  be  waived. — Whenever  any  of 
the  defendants  to  such  petition  are  of  lawful  age  and  shall  sig- 
nify in  writing  their  assent  to  such  sale,  the  notice  required  by 
the  above  section  may  be  dispensed  with  as  to  such  persons,  and 
if  such  persons  be  minors,  and  their  guardians  shall  give  such 
assent,  such  notice  shall  not  be  required,  but  should  said  guardian 
be  the  executor  or  administrator  of  the  estate  and  also  guardian 
of  the  heirs  of  the  decedent,  such  guardian  shall  not  give  his 
assent  to  such  sale,  and  in  all  such  cases  notice  must  be  given  to 
such  minors  as  by  law  now  provided. ^^ 

With  the  exception  mentioned  in  the  above  statute,  a  regular 
guardian  of  minor  defendants  may  waive  notice  for  them." 
Such  notice,  however,  cannot  be  waived  by  a  guardian  ad  litem. ^* 

''Burns'    R.    S.    1908,    §  2856.     All  210.      A    guardian    ad    litem    cannot 

notices    pending    at    the    time   of   the  waive    service    of    process    on    infant 

taking   effect   of   this   act,  that   have  defendants.     Martin  v.   Starr,  7  Ind. 

been    given    under    existing    laws    of  224;  Guy  v.  Pierson,  21  Ind.  18. 

the    pendency    and    hearing    of    peti-  ^^  Hehns     v.     Love,     41     Ind.     210; 

tions    by    executors    and    administra-  Jones   v.    Levi,   72  Ind.   586;    Seward 

tors  to   sell  real  estate   for  the  pay-  v.  Clark,  67  Ind.  289.     The  guardian 

ment  of   debts   of   decedents'   estates,  of    a    decedent's    insane    widow    had 

shall    have    as    full    force    and    effect  the  right  to  file  a  written  assent  for 

and  not  to  be  in  any  way  affected  by  his   ward   to   the  petition  of  the   ex- 

the   passage   of   this   act.      Burns'  R.  ecutor   in   a   proceeding  instituted   in 

S.   1908,   §  2857.  the  common  pleas  court  to  sell   real 

'-  Burns'  R.  S.  1908,  §  2858.    Guard-  estate    for    the   payment    of    the    de- 

ians    of    minors    may    assent    to    the  cedent's  debts.     Smock  v.  Reichwine, 

sale    of    a    decedent's    real    estate    by  117  Ind.  194,  19  N.  E.  lid. 

his  administrator  and  obviate  the  ne-  '*  Hough      v.      Canby,      8      Blackf. 

cessity  of  notice.     Jones  v.   Levi,  72  (Ind.)    301;    Robbins    v.    Robbins,   2 

Ind.    586;    Helms    v.    Love,    41    Ind.  Ind.  74;  Abdil  v.  Abdil,  26  Ind.  287. 


§211  DISPOSITION    OF    REAL    PROPERTY.  307 

A  defendant  is  bound  only  in  the  capacity  in  which  he  waives. 
If  the  waiver  of  one,  who  is  heir,  is  signed  by  him  only  as  guard- 
ian of  other  heirs  who  are  minors,  he  is  not  bound  only  as  a 
guardian.^® 

Unless  there  is  a  waiver  of  notice  filed  b}''  their  guardian  under 
the  above  statute,  notice  must  be  always  served  upon  minor  de- 
fendants. 

To  a  certain  extent  the  law  recognizes  the  right  of  infants  to 
know  something  of  what  is  doing  or  done  in  their  affairs;  and 
it  affords  them  time  and  opportunity  to  consult  their  friends 
relative  to  any  legal  proceedings  instituted  against  them,  and  to 
furnish  in  defense  of  their  rights  such  aid  as  may  be  in  their 
power.  For  this  reason  the  same  notice,  in  proceedings  by  execu- 
tors or  administrators  to  sell  lands,  is  required  for  the  minor 
defendants  as  for  the  adults.^"  And  while  a  guardian  of  minor 
defendants  in  such  proceedings  is  authorized  to  waive  notice  and 
assent  to  the  proceedings  on  behalf  of  his  wards,  a  guardian  ad 
litem,  appointed  for  such  infant  defendants,  cannot  waive  notice, 
or  service  of  process  upon  such  infants. ^^ 

Where,  as   far  as  the  record  shows,  to   D  at  its  appraised  value,  but  for 

the  court  ordered  an  administrator's  less  than  half  that  E  offered  for  it, 

sale  of  real  estate  without  knowledge  with    the    fraudulent    design   of    put- 

of     the     infancy'    of     the     decedent's  ting  the  title  to  the  land  in  the  latter, 

heirs,  the  judgment  is  not  void,  and  and  of  cheating  the  heirs  of  A  and 

the  failure  to  appoint  a  guardian  ad  B.     The  heirs  of   B  were  not  made 

litem    was    merely    collateral    to   that  parties    to    the    proceedings    to    sell, 

error.     Clark  v.  Hillis,  134  Ind.  421,  and  had  no  notice  thereof,  and  were 

34  X.  E.  13.  minors.       The     sale     was     affirmed. 

°'  Helms  V.  Love,  41  Ind.  210.  Held,  that  the  sale  was  not  void  nor 

°^  Hough      v.      Canby,      8      Blackf.  subject  to  collateral  attack.     Palmer- 

(Ind.)    301;    Babbitt   v.    Doe,   4   Ind.  ton  v.   Hoop,   131    Ind.  23,   30   N.   E. 

355 ;    Doe    v.    Anderson,   5    Ind.    33 ;  874. 

Martin  v.   Starr,  7  Ind.  224;   De  La        "  Robbins    v.    Robbins,    2    Ind.    74; 

Hunt   v.   Holderbaugh,   58   Ind.   285;  Abdil   v.    Abdil,   26   Ind.   287.     If   a 

Pugh  v.   Pugh,  9   Ind.    132.     A   died  guardian    ad    litem    is   not    appointed 

and   left   five   heirs.      B,    one   of   the  for  minors,  the  order  of  sale  will  be 

heirs,  took  out  letters  of  administra-  erroneous.     Timmons  v.  Timmons,  6 

tion,  procured  an  order  to  sell  lands  Ind.  8.     A  guardian  ad  litem  cannot 

to    pay   debts,    but    died   before    sale,  waive    the    service   of   notice   on   mi- 

C    was    appointed    administrator    de  nors  of  the  pendency  of  the  petition, 

bonis  non,  and  secretly  sold  the  land  Martin    v.    Starr,    7    Ind.    224.      The 


2o8  INDIANA  PROBATE  LAW.  §  212 

§  212.  Minor  defendants,  guardian  ad  litem. — If  it  shall 
appear  that  any  of  the  heirs  or  devisees  of  the  deceased  are 
minors,  the  court,  before  hearing  the  petition,  shall  appoint  a 
guardian  ad  litem  for  such  minors;  and  if  their  interests  require 
active  opposition,  the  court  may  allow  attorney's  fees  to  such 
guardian.  ^^ 

By  this  statute,  before  a  hearing  can  be  had  upon  a  petition  of 
an  executor  or  administrator  of  a  decedent  to  sell  real  estate  to 
pay  debts,  the  court  should  appoint  a  guardian  ad  litem  for  the 
defendants  to  such  petition  who  are  shown  to  be  minors.  And 
unless  such  guardian  ad  litem  is  so  appointed,  an  order  of  the 
court  directing  the  sale  of  the  real  estate  would  be  erroneous. 

The  record  in  such  proceedings  should  show  not  only  that  a 
guardian  ad  litem  had  been  appointed  for  the  minor  defendants, 
but  that  they  had  also  been  properly  notified,  or  no  decree  or 
order  of  sale  would  bind  them.^'-'  A  guardian  ad  litem  may  be 
appointed  for  minor  defendants  though  they  may  have  a  guard- 
ian regularly  appointed  living  within  the  jurisdiction  of  the 
court.^" 

Minor  defendants  cannot  appear  to  such  proceedings  by  attor- 
ney. They  have  no  power  to  employ  an  attorney,  but  after  the 
appointment  of  a  guardian  ad  litem  for  them,  such  guardian  may 
employ  an  attorney  to  further  represent  such  minors  in  the  pro- 
ceedings.*^^ 

It  is  the  duty  of  the  guardian,  guardian  ad  litem,  or  attorney, 
of  minor  defendants  in  such  proceedings  to  file  an  answer  on  be- 
half of  such  defendants,  and  the  answer  must  demand   strict 

appointment     and    appearance     of     a  not   consent   to   an   order   of   sale   of 

guardian    ad    litem    for    minors    will  lands  without  proof, 

not  cure  a  defect  caused  by  want  of  ^'  Burns'  R.  S.  1908,  §  2861. 

notice  to  them.     Guy  v.   Pierson,  21  °'  Hough      v.      Canby,      8      Blackf. 

Ind.   18.     If  there  is  no  guardian  ad  CInd.)    301;    Comparet  v.   Randall,   4 

litem  appointed  for  minor  heirs,  they  Ind.  55. 

may,   after   arrival   of   age,   bring  an  ""Alexander  v.  Frary,  9  Ind.  481. 

action    to    review    and    set   aside    the  *' Doe  v.   Brown,  8   Blackf.    (Ind.) 

order  of   sale.     Seward  v.   Clark,  67  443;    Timmons    v.    Timmons,    6    Ind. 

Ind.  289.     A  guardian  ad  litem  can-  8;  Guy  v.  Pierson,  21  Ind.  18;  Alex- 
ander V.  Frary,  9  Ind.  481. 


§    213  DISPOSITION    OF    REAL    PROPERTY.  3O9 

proof,  as  against  such  infants,  of  all  matters  alleged  in  the  peti- 
tion. Such  answer  cannot  admit  the  truth  of  the  matters  alleged, 
nor  consent  to  an  order  of  sale.  It  is  the  duty  of  the  executor  or 
administrator  to  make  proof  against  the  minor  defendants  of  the 
matters  alleged  in  his  petition;  otherwise,  a  decree  of  sale,  so  far 
as  such  minors  are  concerned,  would  be  erroneous. ®- 

If  a  minor  defendant  has  been  properly  notified  of  the  pend- 
ency of  the  proceeding,  a  sale  ordered  and  made  without  the 
appointment  of  a  guardian  ad  litem  for  such  minor  defendant, 
though  erroneous,  would  not  be  void.*^^  But  in  such  case  the 
minor  may  have  his  action  to  review  and  set  aside  such  order  on 
his  arrival  at  age.^^ 

Where  a  posthumous  heir  was  born  whose  birth  was  un- 
known to  the  administrator  at  the  time  of  filing  his  petition  and 
at  the  time  the  order  of  sale  was  made,  a  sale  made  upon  such 
order  would  probably  be  void  as  to  such  posthumous  heir.®^ 

§  213.  Hearing  on  the  petition. — Such  petition  shall  stand 
for  hearing  on  the  first  day  of  the  next  term  after  the  giving  of 
notice  unless  the  executor  or  administrator  shall  fix  a  different 
day  during  the  term  for  such  hearing,  by  indorsement  on  the 
petition  at  or  before  the  time  of  filing  thereof.  If  there  be  not 
time  sufficient  for  the  giving  of  such  notice  before  the  close  of 
said  term,  the  defendants  shall  be  notified  to  appear  and  answer 
the  petition  on  the  first  day  of  the  next  ensuing  term.^® 

Upon  the  hearing  of  such  petition,  witnesses  may  be  com- 
pelled to  attend ;  and  depositions,  taken  under  the  usual  regula- 
tions of  law,  may  be  read ;  and  the  parties  to  the  petition  may  be 
examined  under  oath,  as  in  other  cases. ''^ 

'^  Hough      V.      Doyle,     8      Blackf.        "^  Burns'  R.  S.  1908,  §  2855. 
(Ind.)    300;    Pugh   v.    Pugh,   9   Ind.        ''"Burns'  R.   S.    1908,   §2863.     The 
132;    Grain    v.    Parker,    1    Ind.    374;  statute     of     limitations     of     fifteen- 
Martin  V.   Starr,  7  Ind.  224;   McEn-  3-ears     applies     to     petitions     to     sell 
dree  v.  ^IcEndree,  12  Ind.  97.  lands    to   pay    debts,   but   the    statute 

"  Timmons  v.  Timmons,  6  Ind.  8;  does  not  begin  to  run  until  it  is  dis- 

Clark  V.   Hillis,   134   Ind.  421,  34  N.  covered    that    the    personal    estate    is 

E.  13.  not   sufficient  to  pay  all  debts.     Cole 

"Seward  v.  Clark,  67  Ind.  289.  v.   Lafontaine,  84  Ind.  446;    Scherer 

*=McConnel  v.  Smith,  39  111.  279.  v.  Ingerman,  110  Ind.  428,  11  N.  E. 


3IO 


INDIANA    PROBATE    LAW. 


213 


The  heirs  may  successfully  contest  such  petition  by  showing 
that  the  debts,  for  the  payment  of  which  an  order  for  the  sale  of 
land  is  prayed,  are  barred  by  the  statute  of  limitations.  They 
may  also  plead  any  other  lawful  defense."'  In  such  proceeding 
the  court  has  no  jurisdiction  to  try  any  question  involving  the 
title  to  personal  property.  And  a  sale  of  land  under  an  order 
obtained  in  such  proceeding,  when  made,  passes  no  title  to  the 
purchaser  as  against  the  heirs,  in  the  crops  growing  on  the  land 
sold  which  were  planted  before  the  petition  was  filed;  nor  does 


8,  12  N.  E.  304;  Falley  v.  Gribling, 
128  Ind.  110,  26  N.  E.  794;  Witz  v. 
Dale,  129  Ind.  120,  27  N.  E.  498.  If 
it  is  shown  that  there  are  sufficient 
personal  assets  to  pay  the  debts,  the 
land  should  not  be  ordered  sold. 
Brown  v.  Rose,  6  Blackf.  (Ind.)  69. 
Only  so  much  of  the  land  necessary 
to  realize  assets  to  pay  the  debts 
should  be  ordered  sold,  unless  the 
remainder  of  the  lands  would  be  in- 
jured by  selling  only  a  portion  there- 
of. Black  V.  Meek,  1  Ind.  180;  Fra- 
lich  V.  Moore,  123  Ind.  75,  24  N.  E. 
232. 

"'  Persons  who  are  made  parties  to 
proceedings  to  sell  lands  are  con- 
cluded by  the  judgment  and  order  of 
sale.  Vail  v.  Rinehart,  105  Ind.  6,  4 
N.  E.  218;  Bumb  v.  Card,  107  Ind. 
■575,  8  N.  E.  713.  Where  the  peti- 
tion of  an  administrator  of  a  de- 
ceased woman  avers  that  she  died 
the  owner  in  fee  of  the  real  estate, 
and  the  heirs  are  made  parties  there- 
to, the  judgment  in  favor  of  the  ad- 
ministrator estops  the  heirs  from  set- 
ting up  that  the  only  interest  the 
woman  ever  had  in  the  land  was  a 
life  estate.  Such  a  judgment  cannot 
be  collaterally  attacked.  Elliott  v. 
Frakes,  71  Ind.  412,  and  Armstrong 
v.  Cavitt,  78  Ind.  476,  distinguished. 
Lantz  V.  Maffett,  102  Ind.  23,  26  N. 


E.  195.  Where  real  estate  of  a  de- 
cedent, mortgaged  to  secure  debts,  is 
sold  by  order  of  the  probate  court 
upon  application  of  the  administra- 
tors, the  widow  and  her  children  be- 
ing made  parties  to  the  proceeding, 
the  former  by  an  instrument  in  writ- 
ing waiving  the  publication  and 
posting  of  notice  required  by  statute 
and  assenting  to  the  sale  of  the 
wliole,  upon  agreement  that  one- 
third  of  the  proceeds  should  be  paid 
to  her,  the  sale  is  void,  the  probate 
court  having  exceeded  its  jurisdic- 
tion. The  right  of  the  heirs  to  as- 
sert title  to  the  undivided  one-third 
of  the  land  is  not  affected  by  the  in- 
valid order  of  sale,  unless  their  an- 
cestor, through  whom  they  claim, 
received  the  purchase-money,  or  was 
estopped  to  assert  title  by  making 
the  administrators  her  agents.  If 
she  received  and  retained  her  share 
of  the  purchase-price,  the  widow,  as 
well  as  the  heirs,  would  be  estopped. 
Roberts  v.  Lindley,  121  Ind.  56,  22 
N.  E.  967;  Riser  v.  Snoddy,  7  Ind. 
442,  65  Am.  Dec.  740 ;  Gavin  v.  Gray- 
don,  41  Ind.  559;  Cole  v.  Lafontaine, 
84  Ind.  446.  Crops  raised  upon  the 
land  after  the  death  of  the  decedent 
do  not  pass  to  the  purchaser  at  the 
administrator's  sale.  Rodman  v. 
Rodman,  54  Ind.  444. 


§    213  DISPOSITIOX    OF    REAL    PROPERTY.  3II 

such  sale  transfer  to  the  purchaser  the  title  to  wood  cut  and 
corded  on  the  land  at  the  time  of  the  sale/^ 

The  heirs,  devisees,  or  any  other  person  interested  in  the  real 
estate  may  appear  at  the  hearing  and  have  themselves  made  par- 
ties and  contest  the  proceeding,  and  may  show  that  the  claims 
have  been  unjustly  allowed,  or  that  they  are  barred  by  the  statute 
of  limitations,  or  that  the  administrator  has  rents  in  his  hands 
which  they  may  treat  as  money  of  the  estate  and  insist  on  its 
application  to  the  payment  of  debts  in  exoneration  of  the  land.'** 

The  allowance  of  a  claim  against  an  estate  in  one  state  is  not 
competent  proof  of  indebtedness,  and  is  not  even  prima  facie 
evidence  of  the  validity  of  such  claim  for  the  purpose  of  subject- 
ing real  estate  to  sale  in  another  state. '^ 

\Miere  a  decedent  died  leaving  property  in  more  than  one  state, 
the  existence  of  personal  assets  in  the  state  of  his  domicil  suffi- 
cient to  pay  his  debts  is  no  defense  to  an  application  to  sell  real 
estate  under  an  ancillary  administration  to  pay  debts  in  such 
ancillary  jurisdiction,  where  the  administrator  at  the  place  of 
domicil  has  refused  to  pay  them.^- 

As  against  infant  defendants,  the  court  must  have  proof  of  the 
allegations  in  the  petition.  Such  proof  cannot  be  waived  by 
either  the  guardian,  or  guardian  ad  litem.'^  Indeed,  there  must 
be  proof,  in  any  and  every  case,  showing  the  necessity  for  the 
sale,  where  such  proof  is  demanded.'* 

"^Barrett  v.  Choen,  119  Ind.  56,  58,  of  the  allegations  of  the  petition  must 

20  X.  E.   145,  21  X.  E.  2il2,  12  Am.  be  made  as  to  minors,  a  guardian  ad 

St.  363.  litem  having  no  authority  to  consent 

"Goeppner   v.    Leitzelmann,  98  111.  to   a    sale.     Martin  v.    Starr,   7   Ind. 

409:    Champion    v.    Cayce,    54    Miss.  224. 
695.  ■*  :^Iartin  v.  Starr,  7  Ind.  224 ;  Gav- 

"^McGarvey    v.     Damall,     134    111.  in    v.    Graydon,    41    Ind.    559.      It    is 

367,  25  X.  E.   1005;  Hull  v.  Hull,  35  said:     "The    petition    shows    that    a 

W.  Va.  155,  13  S.  E.  49,  29  Am.  St.  claim   was   allowed   in   favor   of   the 

800.  creditor,  and  this  allowance  is  in  the 

"^Lawrence   Appeal,   49   Conn.   411.  nature  of  a  judgment  and  establishes 

"  Doe  V.  Anderson,  5  Ind.  Zl ;  Tim-  a  prima   facie   right  in   the  adminis- 

mons  V.  Timmons,  6  Ind.  8;  Quarles  trator  to  resort  to  the  real  estate  for 

V.    Campbell,    72  Ala.  64;   Fridley  v.  paj-ment,  in  the  absence  of  personal 

Murphy,  25  111.  131 ;  Clark  v.  Thomp-  property-."      Jackson    v.    Weaver,    98 

son,  47  111.  25,  95  Am.  Dec.  457.  Proof  Ind.   307.     Such  prima   facie  case  is 


312  INDIANA    PROBATE    LAW.  §213 

If  the  executor  or  administrator  has  paid  the  debts  out  of  his 
own  money,  he  may  be  subrogated  to  the  rights  of  the  creditors 
whose  claims  he  has  paid ;  and  a  showing  of  this  fact  is  sufficient 
proof  of  the  indebtedness  of  the  estate."  But  the  proof  must 
show  that  the  debts  paid  by  such  executor  or  administrator  were 
vahd  debts  of  the  estate  and  not  barred  by  the  statute  of  limita- 
tions.'^^ 

The  evidence  must  also  show  that  the  personal  property  was 
insufficient  to  pay  the  debts  and  liabilities  of  the  estate,  and  the 
costs  and  expenses  of  the  administration.'" 

It  is  also  necessary  to  make  proof  of  the  intestate's  title  to  the 
real  estate.    If  he  has  no  title,  a  sale  will  be  void.'® 

As  the  administrator  asserts  no  title  in  himself,  the  question  of 
title  to  the  real  estate  only  comes  in  question  as  an  incident  in 
proceedings  to  sell  the  decedent's  real  estate,  and  as  such  pro- 
ceeding is  a  special  one,  under  an  act  which  points  out  the  man- 
ner in  which  such  applications  shall  be  made  and  prosecuted,  who 
shall  be  made  defendants,  what  facts  shall  be  stated  in  the  peti- 
tion, and  what  questions  may  be  tried  and  determined,  and  no 
provision  is  made  therein  for  a  new  trial  as  a  matter  of  right, 
such  trial  is  not  to  be  allowed. ^^ 

The  heirs,  or  others  interested  in  the  land,  may  defend  against 
the  administrator's  petition  by  showing  such  facts  as  would  make 
it  unnecessary  to  sell  the  real  estate.®" 

all    the    administrator   is    required    to  Ind.   387,   22   N.   E.   256.     "The  pur- 
make,  pose    of    the    law    is    to    afford    a 

"  Woolley  V.  Pemberton,  41  N.  J.  speedy  method  for  the  settlement  of 
Eq.  394,  5  Atl.  139;  Livingston  v.  estates,  which  is  inconsistent  with 
Newkirk,  3  Johns.  Ch.  (N.  Y.)  312;  the  theory  that  §  1064  (Burns  R.  S. 
Pendergrass  v.  Pendergrass,  26  S.  1908,  §  1110),  should  apply  to  pro- 
Car.  19,  1  S.  E.  45.  ceedings  to  sell  real  estate  of  a  de- 

™  Gilchrist  v.  Rea,  9  Paige   (N.  Y.)  cedent  for  the  payment  of  debts,  and 

66;  Heath  v.  Wells,  5  Pick.   (Mass.)  allow  any  contestant  a  right  to  take 

140.  a  new  trial  within  one  year  from  the 

"Newcomer    v.    Wallace,    30    Ind.  rendition  of  the  judgment."     Fralich 

216;  Thompson  v.  Joyner,  71  N.  Car.  v.  Moore,  123  Ind.  75,  24  N.  E.  232. 
369.  '"Riser  v.    Snoddy,   7  Ind.  442,   65 

™  Jackson  v.  Weaver,  98  Ind.  307.  Am.  Dec.  740;  Witz  v.  Dale,  129  Ind. 

"Fralich  v.  Moore,  123  Ind.  75,  24  120,  27  N.  E.  498;  Hunter  v.  French, 

N.   E.   232;   Liggett  v.   Hinkley,    120  86  Ind.  320;   O'Haleran  v.  O'Haleran, 


§    213  '       DISPOSITION    OF    REAL    PROPERTY,  3I3 

It  is  a  good  defense  that  the  decedent  was  not  indebted  to  any 
one.^^  But  it  is  no  defense,  however,  to  show  that  there  were 
sufficient  personal  assets  to  have  paid  all  the  debts,  and  that  they 
had  been  wasted  by  the  administrator.®-  Nor  is  it  any  defense 
that  the  land  had  been  sold  and  conveyed  by  the  heir  with  the 
consent  of  the  administrator.  A  purchaser  from  an  heir  is  bound 
to  know  that  such  land  is  liable  to  be  needed  to  make  assets  for 
the  payment  of  the  ancestor's  debts,  and  if,  after  his  purchase^ 
the  land  is  sold  by  the  administrator,  he  cannot  recover  the  pur- 
chase-money from  the  heir.®^ 

The  validity  of  the  appointment  of  an  administrator  or  execu- 
tor cannot  be  questioned  in  such  proceedings,  nor  can  other  col- 
lateral Cjuestions  be  litigated  therein.^* 

Where  the  heir  has  appeared  and  assisted  the  administrator  in 
defending  a  claim  and  an  adjudication  was  had  in  favor  of  the 
claim,  such  heir  cannot  afterwards,  on  an  application  by  the  ad- 
ministrator to  sell  real  estate,  be  heard  to  question  the  validity  of 
such  claim.  ®^ 

The  question  whether  the  decedent  had  an  interest  in  the  land 
is  one  to  be  determined  on  the  administrator's  application  to  sell, 

115  Ind.  493,  17  N.  E.  917;  Parker  Ind.  430;  Cartright  v.  Briggs,  41 
V.  Wright,  62  Ind.  398;  Scherer  v.  Ind.  184;  Brunner  v.  Brennan,  49 
Ingerman,  110  Ind.  428,  11  N.  E.  8,  Ind.  98.  Lands  so  sold  remain  liable 
12  X.  E.  304;  Warren  v.  Hearne,  82  for  the  ancestor's  debts,  and  may  be 
Ala.  554,  2  So.  491 ;  In  re  Topping's  sold  by  the  executor  or  administra- 
Estate,  9  N.  Y.  S.  447.  They  have  tor  in  spite  of  the  conveyance  by  the 
the  right,  in  order  to  protect  the  land  heir  or  devisee.  Baker  v.  Griflfitt, 
from  sale,  to  defend  against  the  83  Ind.  411;  Scherer  v.  Ingerman, 
claims,  even  though  they  may  have  110  Ind.  428,  11  N.  E.  8,  12  N.  E. 
been  allowed  by  the  administrator.  304. 
"  Cole  v.  Lafontaine,  84  Ind.  446.  "  Riser  v.  Snoddy,  7  Ind.  442,  65 
*'Nettleton  v.  Dixon,  2  Ind.  446;  Am.  Dec.  740;  Carnan  v.  Turner,  6 
Moncrief  v.  Moncrief,  11  Ind.  587;  Har.  &  J.  (Md.)  65;  Shields  v.  Ash- 
Baker  V.  Griffitt,  83  Ind.  411;  Fiscus  ley,  16  Mo.  471;  Hewitt  v.  Hewitt,  3 
V.  Moore,  121  Ind.  547,  23  N.  E.  362,  Bradf.  (N.  Y.)  265;  Clement  v.  Fos- 
7  L.  R.  A.  235.  ter,  71  X.  Car.  36. 

^Moncrief    v.    Moncrief,    IZ    Ind.  ''Smith  v.   Gorham,    119   Ind.   436, 

587;   Foltz  v.   Wert,   103   Ind.  404,  2  21   X.  E.   1096. 
X.   E.  950;   Weakley  v.   Conradt,  56 


314  INDIANA    PROBATE    LAW.  §214 

and  if  it  appears  that  his  interest  is  merely  a  Hfe  estate  the  peti- 
tion should  be  dismissed.^" 

§  214.  The  order  of  sale. — The  order  of  sale  made  upon  an 
administrator's  application  is  his  authority  to  make  the  sale ; 
without  it  the  sale  by  him  will  be  void.^^  For  this  reason  such 
orders  should  comply  with  the  statute,  and  should  as  a  rule  fol- 
low the  petition,  and  should  so  describe  the  land  to  be  sold  that  it 
can  be  identified,  and  should  specifically  show  what  part  is  to  be 
sold.«« 

If  it  is  not  necessary  for  the  payment  of  debts  to  sell  all  the 
land,  it  should  not  be  ordered  sold  unless  it  would  greatly  injure 
the  residue  not  to  sell  it/'' 

If  the  title  to  the  real  estate  is  put  in  issue;  or  if  the  petition, 
averring  title  in  the  decedent,  tenders  such  issue  to  his  heirs,  who 
are  properly  made  parties  to  the  proceeding  by  the  administrator, 
the  order  of  the  court  upon  such  petition  concludes  them.''*'  But 
persons  who  are  made  parties  to  such  proceeding  in  the  capacity 
of  heirs  only  are  concluded  only  as  heirs  of  the  decedent  whose 
land  is  ordered  sold.  The  order  of  court  in  such  case  is  subject 
to  the  general  rule  which  governs  judgments,  that  parties  thereto 
are  only  concluded  in  the  capacity  in  which  they  sue  or  are  sued.^^ 

'"Grim's    Appeal,     1    Grant     (Pa.)  "'Black     v.     Meek,     1     Ind.     180; 

209;    Manson   v.    Duncanson,    166   U.  Fralich  v.  Moore,  123  Ind.  75,  24  N. 

S.   533,   41    L.    ed.    1105,    17    Sup.    Ct.  E.  232;  Merrill  v.  Harris,  26  N.  H. 

647.  142,  57  Am.  Dec.  359;   In  re  Dolan, 

^^  Sherry  v.  Sansberry,  3  Ind.  320;  88  N.  Y.  309. 

Gilchrist   V.    Shackelford,   72   Ala.   7.  "» Jackson  v.  Weaver,  98  Ind.  307; 

''Gelstrop  v.  Moore,  26  Miss.  206,  Lantz  v.  Maffett,  102  Ind.  23,  26  N. 

59    Am.    Dec.    254;    Teverbaugh    v.  E.  195 ;  Craighead  v.  Dalton,  105  Ind. 

Hawkins,    82    Mo.     180;     Estate    of  72,    4    N.     E.    425;     Hutchinson    v. 

Rose,  63  Gal.  346;  Verry  v.  McClel-  Lemcke,    107   Ind.    121,   8   N.   E.   71; 

Ian,    6    Gray    (Mass.)    535,    66    Am.  Bumb  v.  Gard,  107  Ind.  575,  8  N.  E. 

Dec.   423;   Williams  v.   Childress,  25  713. 

Miss.   78;   Montgomery    v.    Johnson,  "^Barrett  v.  Choen,  119  Ind.  56,  58, 

.31   Ark.   74;   Jemison   v.   Gaston,   21  20  N.  E.  145,  21  N.  E.  322,  12  Am.  St. 

■Texas    266 ;    Thain    v.    Rudisill,    126  363 ;  Erwin  v.  Garner,  108  Ind.  488,  9 

Ind.    272,    26    N.    E.    46;    Adams    v.  N.  E.  417;  McBurnie  v.  Seaton,  111 

-Larrimore,    51    Mo.    130;    Griffith    v.  Ind.  56,  12  N.  E.   101;   Colglazier  v. 

Philips,  9  Lea  (Tenn.)  417,  Colglazier,  117  Ind.  460,  20  N.  E.  490. 


§214  DISPOSITION    OF    REAL    PROPERTY.  3'^  5 

If  the  administrator  is  compelled  to  take  back  land  once  sold 
under  a  valid  order,  by  reason  of  the  failure  of  the  purchaser  to 
comply  with  the  terms  of  his  purchase,  such  land  may  be  resold 
without  any  further  order  of  court.®" 

An  order  of  sale  made  upon  the  application  of  an  executor  or 
administrator  directing  the  sale  of  a  decedent's  real  estate  for  the 
payment  of  his  debts,  is  in  the  nature  of  a  judgment  and  cannot 
be  collaterally  impeached  for  mere  errors  or  irregularities,  if  the 
court  making  the  order  had  jurisdiction  of  the  subject-matter 
and  of  the  person.^'  Such  judgment  is  not,  however,  a  final 
judgment.  The  entire  matter  remains  under  the  control  of  the 
court  until  the  land  is  sold,  a  report  of  the  sale  made  to  the  court, 
and  the  sale  confirmed,  and  a  deed  ordered  to  be  made  to  the 
purchaser.  Not  until  then  are  the  proceedings  in  such  matter 
brought  to  a  final  termination.  The  order  of  sale  is  an  interlocu- 
tory order  and  may  be  appealed  from  as  such  if  the  appeal  be 
properly  taken  under  the  statute.*** 

Where  an  issue  is  made  on  the  question  of  title,  and  the  court, 
in  its  order,  finds  that  the  decedent  was  not  the  owner  of  the 
land  of  which  sale  is  prayed,  and  so  decrees,  although  such  decree 
is  erroneous,  it  is  conclusive  upon  the  administrator  unless  ap- 
pealed from,  or  otherwise  set  aside.^' 

An  order  obtained  by  fraud  is  binding  on  the  parties  until  set 
aside  in  some  proceeding  instituted  for  that  purpose ;  and  a  sale 
made  under  such  order  is  not  void,  nor  is  it  subject  to  a  collateral 
attack.^' 

'"-  Stowe  V.  Banks,  123  Mo.  672,  27  heirs  of  a  decedent,  the  order  of  sale 

S    W.  347.  will  not  affect  the  interest  they  may 

"^  Pepper  v.  Zahnzinger,  94  Ind.  88.  have  otherwise  acquired  in  the  lands. 

If   the   court  has  jurisdiction  of  the  Elliott  v.  Frakes,  71  Ind.  412;  Bumb 

subject-matter    and    the     parties,     all  v.  Card,  107  Ind.  575,  8  N.  E.  713. 
such  parties  are  bound  by  the  orders         »^  Staley  v.    Dorset,     11     Ind.    367; 

of  the  court.     Spaulding  v.  Baldwin,  Love  v.   Mikals,    12   Ind.  439;   Simp- 

31  Ind.  376;  Dequindre  v.  Williams,  son   v.    Pearson,   31    Ind.    1,   99   Am. 

31    Ind.    444:    Lantz    v.    INIaffett,    102  Dec.  577. 

Ind.  23,  26  N.  E.  195 ;  Vail  v.  Rine-        ''  Parker  v.  Wright,  62  Ind.  398. 
hart    105  Ind.  6,  4  N.  E.  218;  Bumb        '«' Palmerton  v.   Hoop,   131  Ind.  23, 

V.   Card,  107  Ind.  575,  8  N.  E.  713.  30   N.   E.   874;   Weiss   v.   Guerineau, 

When    persons    are    parties    only    as  109  Ind.  438,  9  X.  E.  399. 


3i6 


INDIANA    PROBATE    LAW. 


214 


An  order  of  sale  which  is  clearly  within  the  issues  formed  by 
the  pleadings  is  binding  and  conclusive  upon  all  who  were  prop- 
erly made  parties  to  the  proceeding,  and  is  impervious  to  a  col- 
lateral attack  by  any  one  who  was  a  party  thereto.®^ 

As  the  order  of  sale  constitutes  the  warrant  and  authority  to 
the  executor  or  administrator  to  sell,  it  should  be  in  strict  com- 
pliance with  the  statute,  and  should  be  certain  and  specific  in  its 
terms,  should  accord  with  the  petition,  describe  the  land  so  that 
it  can  be  identified,  specify  the  place  of  sale,  and  prescribe  the 
method  and  terms  of  sale.''® 


"'  Thomas  v.  Thompson,  149  Ind. 
391,  49  N.  E.  268;  Watkins  v.  Lewis, 
153  Ind.  648,  55  N.  E.  83;  Myers  v. 
Boyd,  144  Ind.  496,  43  N.  E.  567. 

°*  Woerner  Am.  Law  Admin.,  §  473. 
While  it  is  manifestly  the  policy  of 
the  law  to  uphold  judicial  sales  made 
without  fraud,  so  as  not  to  deter  pur- 
chasers by  encouraging  the  apprehen- 
sion that  their  substantial  rights  and 
interests  may  be  sacrificed  to  tech- 
nical considerations,  while  courts  will 
go  very  far  to  insure  protection  to 
innocent  purchasers  in  collateral  pro- 
ceedings, even  in  cases  of  gross  error 
arising  out  of  blunders  or  careless- 
ness of  probate  courts  or  their 
officers,  it  is  obviously  of  the  gravest 
importance  that  every  step  taken  in 
subjecting  the  real  estate  to  sale  for 
the  payment  of  debts  be  as  nearly  as 
possible  in  literal  compliance  with  the 
method  pointed  out  by  the  statute 
upon  which  the  proceeding  is  based. 
Where  particular  forms  are  pointed 
out  for  the  execution  of  a  power, 
however  immaterial  they  may  appear 
in  themselves,  these  forms  are  condi- 
tions that  cannot  be  dispensed  with. 
It  is  a  pernicious  error,  fruitful  of 
trouble  and  mischief,  to  suppose  that 
any  vague,  inartificial  statement  of 
circumstances  is  sufficient  to  author- 
ize   an    order    for    the    sale    of    real 


estate,  if  the  applicant  and  the  judge 
both  know  all  about  the  matter;  or 
that  the  good  faith  and  honesty  with 
which  the  application  is  made  are  a 
sufficient  safeguard  against  ruinous 
complications  and  litigation  that  may 
follow  an  oversight  or  mistake.  The 
anxiet}'  of  courts  to  vindicate  the 
validity  of  judicial  sales  should  not 
be  relied  on  as  a  pretext  for  the  care- 
lessness of  executors  and  administra- 
tors, or  the  supineness  of  probate 
courts,  in  the  several  steps  necessary 
for  the  sale  of  real  estate.  Even  if 
the  sale  should  be  held  good  as 
against  a  collateral  attack,  and  it 
is  distressingly  uncertain  to  what  ex- 
tent the  trial,  and  even  appellate 
courts  will  go  in  that  direction,  yet 
many  acts  of  commission  or  omission 
which  will  not  be  allowed'  to  invali- 
date the  transaction  in  a  collateral 
investigation  may  in  a  direct  proceed- 
ing subject  the  administrator  to  seri- 
ous liability,  the  estate  to  loss  and 
delay,  and  all  parties  concerned  to 
vexatious  and  oftentimes  ruinous 
litigation.  No  part  of  an  administra- 
tor's duty  claims  more  careful  atten- 
tion, and  demands  more  imperatively 
the  advice  and  assistance  of  a  compe- 
tent professional  man,  than  his  rela- 
tions to  and  duties  concerning  the 
real  estate  of  the  deceased.    Woerner 


214 


DISPOSITION    OF    REAL    PROPERTY. 


317 


Our  Statute  as  to  what  shall  be  prescribed  in  the  order  of  sale 
is  as  follows:  If,  upon  such  hearing,  the  court  shall  find  the 
material  allegations  of  the  petition  to  be  true,  it  shall  enter  a 
decree  declaring  the  real  estate  liable  to  be  sold  to  make  assets 
for  the  payment  of  debts  and  liabilities  of  the  estate,  and  em- 
powering the  executor  or  administrator  to  sell  so  much  thereof 
as  may  be  found  necessary  to  discharge  said  debts  and  liabilities. 
If  it  be  shown  on  the  hearing  that  the  real  estate,  or  any  portion 
thereof,  is  incumbered  by  liens,  the  court  shall,  in  its  finding,  fix 
the  amount  and  extent  of  each  lien  and  the  priorities  of  the  sev- 
eral liens.  If  any  debt  secured  by  lien  be  not  due,  the  court  shall 
fix  the  amount  thereof  at  its  present  worth,  rebating  interest  for 
the  unexpired  time,  unless  the  real  estate  be  sold  subject  to  the 
lien.  The  petition  shall  remain  pending  on  the  docket  until  the 
real  estate,  or  so  much  thereof  as  may  be  necessary,  be  sold  for 
the  payment  of  said  debts  and  liabilities;  and  further  sales  may 
be  ordered  by  the  court  from  time  to  time  without  further  peti- 


Am.  Law  Admin.,  §  463.  It  is  said 
by  Mr.  Freeman,  in  his  work  on 
Void  Execution,  Judicial,  and  Pro- 
bate Sales,  at  page  45,  that  "Probate 
sales,  we  are  sorry  to  say,  are  gen- 
erally viewed  with  extreme  suspicion. 
Though  absolutely  essential  to  the 
administration  of  justice,  and  form- 
ing a  portion  of  almost  every  chain 
of  title,  they  are  too  often  subjected 
to  tests  far  more  trying  than  those 
applied  to  other  judicial  sales.  Mere 
irregularities  of  proceeding  have, 
even  after  the  proceedings  had  been 
formally  approved  by  the  court,  often 
resulted  in  the  overthrow  of  the  pur- 
chaser's title.  In  fact,  in  some  courts 
the  spirit  manifested  toward  probate 
sales  had  been  scarcely  less  hostile 
than  that  which  has  made  tax  sales 
the  most  precarious  of  all  the 
methods  of  acquiring  title."  The 
loose  and  slipshod  methods  of  many 
courts     of     probate     jurisdiction     in 


cases  where  the  rights   and  titles  of 
heirs  are  involved  cannot  receive  the 
approval  of  appellate  tribunals  when 
they  come  under  review.     While  ap- 
plications for  the  sale  of  real  estate 
are  nominally  adversary  proceedings, 
they  are,   in   fact,   in  most  cases,  ex 
parte,  the  administrator  looking  after, 
or  being   expected   to   look   after,   as 
well  the  interests  of  the  widow  and 
heirs     as     the     rights     of     creditors. 
The   widow    and   adult   heirs   usually 
make    default,    and    the    minors    are 
represented  by  a  guardian  ad  litem, 
who  appears  pro  forma  only.     Under 
such     circumstances,    to    permit    the 
probate  court  to  play  fast  and  loose 
with  petitions  and  orders,  without  re- 
gard to  any  rules  of  law,  or  orderly 
procedure,  is  to  encourage  a  danger- 
ous  laxity   in   practice,   and  to   trifle 
with    the    important    rights    of   prop- 
erty.    Bell  V.   Shaffer,   154  Ind.  413, 
56  N.  E.  217. 


3l8  INDIANA    PROBATE    LAW.  §    21 5 

tion  or  notice,  upon  proof  that  the  sales  ah-eady  made  are  insuffi- 
cient for  that  purpose.^® 

The  order  of  sale,  except  where  otherwise  provided  by  statute, 
should  not  include  the  interest  of  the  widow  of  the  decedent/ 

If  the  land  included  in  the  order  of  sale  lies  contiguous  to  some 
town  or  city,  and  can  be  sold  to  more  profit  to  the  estate  if  it  is 
platted  or  subdivided,  the  court  may  order  the  executor  or  ad- 
ministrator before  sale  to  plat  the  same.  The  statute  is  as  fol- 
lows :  The  court  ordering  the  sale  may,  upon  the  application 
of  the  executor  or  administrator,  authorize  him,  previous  to  the 
sale,  to  lay  out  all  or  any  part  of  the  lands  into  town  lots,  streets, 
alleys  and  squares,  and  make  the  necessary  dedication  to  public 
use  of  the  streets,  alleys  and  squares.  An  accurate  plat  thereof 
shall  be  reported  to  the  court  for  approval,  and,  if  approved, 
shall  thereupon  be  acknowledged  by  the  executor  or  administrator 
and  recorded  in  like  manner  and  with  like  effect  as  in  case  of 
private  individuals,  whereupon  he  shall  proceed  to  sell  lots  upon 
the  terms  provided  in  the  order  of  sale." 

§  215.'  Order  carried  out  by  successor. — In  all  cases  where 
an  order  of  sale  of  real  estate  has  heretofore  been  made,  or  shall 
hereafter  be  made  on  the  application  of  any  executor  or  adminis- 
trator in  any  decedent's  estate  by  any  of  the  courts  of  this  state, 
and  such  executor  or  administrator  has  or  may  have  died  or  re- 
signed, or  has  been  or  hereafter  may  be  removed,  his  successor 
or  successors  are  hereby  authorized  to  make  sale  and  conveyance 
of  any  such  real  estate  upon  the  same  terms  and  conditions,  and 
subject  to  the  same  rules  and  regulations,  as  were  or  hereafter 
may  be  applicable  to  said  executor  or  administrator  who  obtained 
such  order  of  sale,  but  such  successor  shall  give  bond  to  account 
for  the  proceeds  of  such  sale  in  the  same  manner  as  he  or  they 
should  have  done  if  said  order  had  been  obtained  by  them.  And 
it  shall  not,  in  any  case,  be  necessary  to  revive  said  order  of  sale ; 
but  said  successor  shall  carry  on  and  conclude  the  proceedings 

'^  Burns'  R.  S.   1908,   §  2863.  =  Burns'  R.  S.  1908,  §  2869. 

^Rocker  v.   Metzger,   171   Ind.  364, 
86  N.  E.  403. 


§    2l6  DISPOSITION    OF    REAL    PROPERTY.  319- 

upon  such  order  in  the  same  manner  as  said  fomier  executor  or 
administrator  should  have  done. 

By  this  statute  if  an  executor  or  administrator  die,  resign,  is 
removed,  or  from  any  cause  is  disquahfied  to  act  after  an  order 
for  the  sale  of  his  decedent's  real  estate  has  been  made,  and  pend- 
ing the  sale,  his  successor  in  the  trust  may  complete  the  sale  with- 
out a  further  order. •'' 

§  216.  Inventory  and  appraisement. — Before  proceeding 
to  the  sale  of  the  land  the  executor  or  administrator  shall  make  a 
correct  inventory  of  the  real  estate  of  the  decedent  and  cause  the 
same  to  be  appraised  by  two  persons  competent  to  appraise  the 
personal  estate  of  the  decedent.  If  the  lands  lie  in  more  than  one 
county,  appraisers  residing  in  each  county  may  be  appointed  to 
appraise  the  lands  therein  situate.  Such  appraisers  shall  take  and 
subscribe  an  oath  that  they  will  honestly  appraise  the  real  estate 
of  the  decedent  at  its  fair  cash  value :  Provided,  however,  That 
nothing  in  this  act  shall  be  so  construed  as  to  prevent  the  ap- 
praisers of  one  county  from  appraising  the  lands  of  a  decedent 
situate  in  adjoining  counties  where  it  is  convenient  to  do  so.  The 
real  estate  shall  be  appraised  in  as  small  parcels  as  practicable; 
and  if  specified  portions  of  the  real  estate  be  encumbered  with 
special  liens,  the  executor  or  administrator  shall  cause  such  speci- 
fied portions  to  be  appraised  in  a  body  if  necessar}^  to  show  the 
value  thereof.  Such  appraisement,  when  completed,  shall  be  at- 
tested by  the  appraisers  and  the  inventory,  appraisement  and 
oaths  of  the  appraisers  filed  in  court  on  or  before  the  hearing  of 
the  petition.  Re-appraisements  of  the  real  estate  may  be  after- 
'.vard  made  under  the  order  of  the  court  when  it  shall  be  shown 
to  the  court  that  the  appraisement  is  too  high  or  too  low.* 

The  court  has  the  power  to  correct,  in  such  appraisement,  an 
error  in  the  description  of  the  land  appraised.  A  sale  of  de- 
cedent's real  estate,  made  by  an  executor  or  administrator,  would 

'  Gress   Lumber   Co.  v.   Leitner,  91     Todd  v.  Willis,  66  Tex.  704,  1  S.  W. 
Ga.  810,  18  S.  E.  62;  ^lassey,  Succes-     803. 
sion  of,  46  La.  Ann.   126,  15   So.  6;        *  Burns'  R.   S.   1908,  §  2862. 


320  INDIANA  PROBATE  LAW.  %    2iy 

be  erroneous  where  no  inventory  or  appraisement  of  such  real 
estate  had  been  made.^ 

It  is  the  pohcy  of  the  law  to  uphold  judicial  sales  so  far  as  the 
same  may  be  reasonably  done,  and  where  the  record  is  silent  as  to 
any  particular  act  required  to  be  done  by  an  officer  making  such 
sale,  the  presumption  is  that  the  officer  did  his  duty.*^  It  is  like- 
wise the  policy  of  the  law  to  uphold,  by  every  reasonable  pre- 
sumption of  regularity,  sales  made  by  executors  and  adminis- 
trators, and  when  the  law  requires  an  appraisement  of  the  real 
estate  of  the  decedent,  prior  to  such  sale,  as  a  rule,  a  sale  without 
such  an  appraisement  would  be  a  nullity;  but  in  the  absence  of 
proof  to  the  contrary,  the  record  being  silent,  such  appraisement 
will  be  presumed  to  have  been  made."  If  the  court  has  acquired 
jurisdiction,  the  validity  of  a  sale  of  a  decedent's  real  estate  by 
his  administrator  is  not  affected  by  the  fact  that  the  appraisers  of 
such  real  estate  were  selected  by  the  administrator  and  the  ap- 
praisement of  the  real  estate  made  by  them  before  his  appoint- 
ment as  administrator.  This  is  an  irregularity,  but  nothing 
more.^ 

Also  the  failure  of  the  appraisers  to  sign  the  appraisement  is  a 
defect,  but  one  which  will  not  avoid  the  sale  as  against  a  pur- 
chaser in  good  faith. ^ 

§  217.  Bond  for  sale  of  real  estate. — As  the  real  estate  of 
a  decedent  is  not  primary  assets  in  the  hands  of  his  executor  or 

'Lasure    v.     Carter,     5     Ind.     498.  483;    Talbott    v.    Hale,    72    Ind.    1; 

Where  the  will   directs  that   real  es-  Jones  v.   Kokomo  &c.  Assn.,  77  Ind. 

tate  shall  be  appraised  before  sale,  it  340;   Woolen  v.   Rockafeller,  81   Ind. 

will  be  presumed,  after  a  sale  by  the  208. 

executor  or  administrator,  in  the  ab-  '  Davis  v.  Hoover,  112  Ind.  423,  14 

sence  of  proof  to  the  contrary,  where  X'.  E.  468;   Evans  v.  Ashby,  22  Ind. 

the  deed  purports  to  have  been  made  15;  Rorer  on  Judicial  Sales,  843,857; 

in    accordance    with    the    will,     and  Burns'  R.  S.  1908,  §  2882. 

where   the   public   records   have  been  '  Rice  v.   Cleghorn,  21  Ind.  80. 

destroyed,  that  an  appraisement  was  •'  Worthington    v.    Dunkin,   41    Ind. 

had.     Burns'  R.   S.   1908,  §  479;  Da-  515;  Aloore  v.  Wingate,  53  Mo.  398; 

vis  V.  Hoover,  112  Ind.  423,  14  N.  E.  Fleming  v.   Bale,  23  Kan.  88;  John- 

468.  son   v.   Beazley,  65  Mo.  250,  27  Am. 

'Rorer    on    Judicial    Sales,    14,    57  Rep.  276n. 
and  776;  White  v.  Cronkhite,  35  Ind. 


8    217  DISPOSITION    OF    REAL    PROPERTY.  32 1 

administrator,  it  is  the  law  in  this  state  that  the  general  adminis- 
tration bond  is  not  liable  for  the  proceeds  of  a  sale  of  land  made 
by  an  executor  or  administrator;  therefore,  previous  to  making 
an  order  for  any  such  sale,  the  executor  or  administrator  shall 
file  in  the  office  of  the  clerk  of  court,  a  bond  payable  to  the  state 
of  Indiana  in  a  penalty  not  less  than  double  the  appraised  value 
of  the  real  estate  to  be  sold,  with  sufficient  freehold  sureties,  to 
be  approved  by  the  court,  and  conditioned  for  the  faithful  dis- 
charge of  his  trusts  according  to  law." 

The  failure  of  an  executor  or  administrator  to  give  the  bond 
required  by  this  statute,  and  an  order  for  the  sale  of  a  decedent's 
land  is  made  by  the  court  upon  proper  application,  both  the  court 
and  such  executor  or  administrator  mistakenly  supposing  that  the 
statute  had  been  complied  with,  will  not  render  void  a  sale  made 
under  such  order  and  properly  reported  to  and  confirmed  by  the 
court,  where  the  money  received  at  such  sale  is  faithfully  ac- 
counted for  by  the  executor  or  administrator.^^ 

The  bond  required  by  this  statute  is  only  to  secure  the  proper 
discharge,  by  the  executor  or  administrator,  of  his  duties  in  re- 
gard to  the  sale  of  the  decedent's  lands,  and  the  proper  account- 
ing for  the  proceeds  arising  from  such  sale,^-  the  sureties  on  such 
bond  being  liable  only  for  such  amounts  as  the  administrator  or 
executor  derives  from  the  sale  of  the  real  estate." 

Where  an  administrator  is  ordered  to  give  bond,  and  such  bond 
is  filed,  although  it  does  not  appear  in  the  record,  the  presump- 
tion is  that  a  bond  was  properly  executed.^"* 

'"Burns'  R.  S.  1908,  §  2870.  '=Worgang   v.    Clipp,   21    Ind.    119, 

"Foster  v.  Birch,  14  Ind.  445;  Mc-  83  Am.  Dec.  343. 

Keever  v.  Ball,  71  Ind.  398;  Jones  v.  "Warwick    v.    State,    5    Ind.    350; 

French,    92    Ind.    138;    Dequindre    v.  Bartch  v.  State,  17  Ind.  506;  Fleece 

Williams,  31   Ind.  444;  Clark  v.  Hillis,  v.  Jones,  71  Ind.  340. 

134  Ind.  421,  34  N.  E.  13.  If  the  land  "  Saul  v.  Frame,  3  Tex.  Civ.  App. 

is  sold  by  the  administrator  with  the  596,  22   S.   W.  984;   Clark  v.   Hillis, 

consent  of  the  heirs,  without  an  or-  134  Ind.  421,  34  N.  E.  13.    Where  an 

der  of  court,  a  bond  given  to  cover  administrator  was  ordered  to  give  an 

the  proceeds  of  the  sale  is  enforcible  additional   bond    to    secure    the    pro- 

against  sureties.     Fleece  v.  Jones,  71  ceeds    of    a    sale   of   the    real    estate, 

Ind.  340.  and  it  appears  from  the  record  that 

21 — Pro.  L.\w. 


322 


INDIANA  PROBATE  LAW.  §  2l8 


The  proceeds  of  a  sale  of  real  estate  by  an  administrator  or 
executor  do  not  become  general  assets  in  his  hands,  in  such  a  way 
as  to  make  the  sureties  upon  his  original  bond  liable  for  the  mis- 
application of  the  proceeds  of  such  sale." 

While  the  statute  says  "sureties,"  yet  if  a  bond  with  one  surety 
is  deemed  sufficient  and  is  approved,  a  sale  under  it  will  be  valid."' 

§  218.  The  interest  of  the  widow. — Tenancies  by  the  cur- 
tesy and  in  dower  no  longer  exist  in  this  state..  And  the  widow 
of  a  deceased  husband  now  takes  her  interest  in  his  real  estate  in 
fee-simple  as  the  heir  of  such  husband.''  But  such  widow  is  an 
heir  of  her  husband  only  in  a  special  and  limited  sense,  and  not 
in  the  general  sense  of  the  term.'^  At  common  law  the  surviving 
wife  was  not  an  heir  of  the  husband,  and  her  rights  in  his  real 
estate,  in  this  state,  are  those  created  by  statute  alone.'"  The 
widow's  interest  in  such  real  estate  is  given  her  by  law  as  a  sub- 
stitute for  her  right  of  dower  at  common  law.'"  In  the  case  of 
Noel  V.  Ewing,  9  Ind.  ^^l^  the  court  says:  "It  is  not  dower  itself 
which  the  law  holds  sacred.  It  is  the  purpose  for  which  dower 
was  reserved;  it  is  the  support  of  the  widow  out  of  the  wealth 
which  she  has  helped  to  acquire  which  the  law  favors.  No  mat- 
ter what  the  name — whether  dower  or  some  other  estate — they 
are  all  the  same.  The  support  of  the  widow  is  the  end  to  be  at- 
tained. The  law  of  1852  substituted  a  third  in  fee  in  lieu  of  a 
third  for  life.  The  court  must  regard  the  substitute  with  the 
same  favor  and  administer  it  with  the  same  liberality  extended 

he  did  so,  it  will  not  be  presumed  in  make    a    sale    for    the    administrator 

the  absence  of  such  bond  that  it  was  and  has  given  bond,  the  appointment 

not    executed    as    ordered.      Marquis  of    the    commissioner,   being   without 

V.  Davis,  113  Ind.  219,  IS  N.  E.  251;  authority,    is    void,    the    sale    of    the 

Clark  V.'  Hillis,   134  Ind.  421,  34   N.  land  by  him  is  void,  the  bond  given 

£_  13_  is  void  even  as  a  common  law  bond. 

"Reno  V.  Tyson,  24  Ind.  56;   Col-  State  v.  Younts,  89  Ind.  313. 

burn  v.   State,  47  Ind.  310;   State  v.  '' Fletcher  v.  Holmes,  32  Ind.  497; 

Cloud,  94  Ind.  174.  Bowen     v.     Preston,     48     Ind.     367; 

'"  Sc'hneck  v.  Cobb,  107  Ind.  439,  8  Thacher  v.  Devol,  50  Ind.  30. 

N.    E.    271;    Marquis    v.    Davis,    113  ^^Unfried  v.  Heberer,  63  Ind.  67. 

Ind.   219,    15    N.    E.   251.     Where    a  '' Gaylord  v.  Dodge,  31  Ind.  41. 

commissioner  has  been  appointed  to  ="  McCord  v.  Wright,  97  Ind.  34. 


2l8 


DISPOSITION    OF    REAL    PROPERTY. 


323 


to  dower,  and  for  the  same  reason— that  the  widow  is  the  fa- 
vorite of'  the  law."  As  against  the  heirs  of  her  husband,  the 
widow  is  entitled  to  one-third  of  all  the  real  estate  of  which  he 
died  the  owner,  and  this  amount  can  only  be  reduced  in  favor  of 
her  husband's  creditors.-' 

It  is  the  established  rule  of  law  in  this  state  that  the  interest  of 
a  widow  in  the  lands  of  her  deceased  husband  cannot  be  sold  to 
pay  his  debts  upon  the  application  of  the  executor  or  adminis- 
trator of  his  estate.  The  decisions  of  the  Supreme  Court  go  very 
far  on  this  point,  for  they  hold  that  the  court  has  no  jurisdiction 
to  render  a  judgment  directing  a  sale  of  the  widow's  interest; 
and  an  order  made  by  a  court  in  a  cause  where  it  has  no  jurisdic- 
tion is  void,  and  no  title  can  be  built  upon  it." 

If,  however,  the  widow  consents  to  such  sale,  and  afterwards 
receives  her  share  of  the  purchase  money,  she  would  be  estopped 
from  disputing  the  validity  of  the  sale.^^ 

Where  the  widow  is  made  a  defendant  to  an  administrator's 


=^' Johnson   v.   Johnson,   9   Ind.   28; 
Louden   v.   James,   31   Ind.   69;   Kid- 
well  V.  Kidwell,  84  Ind.  224.     Orders 
for  the  sale  of  lands  of  decedents  to 
pay  debts  do  not  affect  the  interest  of 
the  widow  in  such  lands  when  she  is 
only  a  party  to  such  proceedings  as 
such    widow.      Kent    v.    Taggart,    68 
Ind.    163;   Elliott  v.   Frakes,  71   Ind. 
412;  Compton  v.  Pruitt,  88  Ind.  171 
Pepper    v.    Zahnzinger,    94    Ind.    88 
Clark    V.     Deutsch,     101     Ind.     491 
Hutchinson  v.  Lemcke,  107  Ind.   121, 
8  N.  E.  71. 

-  Hanlon  v.  Waterbury,  31  Ind.  168; 
Williams  v.  Williams,  125  Ind.  156, 
25  X.  E.  176;  Kent  v.  Taggart,  68 
Ind.  163;  Elliott  v.  Frakes,  71  Ind. 
412;  Armstrong  v.  Cavitt,  78  Ind. 
476;  Compton  v.  Pruitt,  88  Ind.  171; 
Pepper  v.  Zahnzinger,  94  Ind.  88; 
Clark  V.  Deutsch,  101  Ind.  491; 
Brvan  v.  Uland,  101  Ind.  477;  Bumb 
V.   Gard,   107  Ind.  575,  8  N.  E.  713 ; 


Rocker  v.   Metzger,   171   Ind.  364,  86 
X.  E.  403. 

="  Lewis  V.  Watkins,  150  Ind.  108, 
49  X.  E.  944;  Smock  v.  Reichwine, 
117  Ind.  194,  19  X.  E.  lid;  Pepper  v. 
Zahnzinger,  94  Ind.  88;  Roberts  v. 
Lindley,  121  Ind.  56,  22  N.  E.  967; 
Hutchinson  v.  Lemcke,  107  Ind.  121, 
8  X.  E.  71.  The  mere  signing  of  a 
writing  by  a  widow,  waiving  the  no- 
tice required  by  statute  and  consent- 
ing that  her  interest  in  the  land  may 
be  sold,  will  not  confer  jurisdiction 
on  the  court  to  order  the  sale  of 
such  interest.  Roberts  v.  Lindley, 
121  Ind.  56,  22  N.  E.  967.  The 
guardian  of  an  insane  widow  may 
assent  to  the  sale  of  the  interest 
of  such  widow  in  the  lands  of  the 
decedent,  in  proceedings  to  sell  lands 
to  pay  the  debts  of  the  decedent. 
Smock  V.  Reichwine,  117  Ind.  194, 
19  X.  E.  776. 


324  INDIANA  PROBATE  LAW.  §  219 

petition  to  sell  lands  for  the  payment  of  the  debts  of  her  hus- 
band, and  on  the  hearing  of  such  petition  she  makes  default,  it 
gives  no  power  to  sell  her  interest  in  such  lands,  and  if  such 
interest  is  sold  the  purchaser  takes  neither  title  nor  color  of  title 
to  such  interest.  The  sale,  so  far  as  the  widow's  interest  is  con- 
cerned, is  an  absolute  nullity.  The  statute  of  limitations  cannot, 
in  such  case,  bar  the  widow,  nor  will  a  receipt  by  her  of  part  of 
the  purchase-money  of  such  sale  estop  her  from  claiming  her  in- 
terest in  such  land;  nor  can  she  be  compelled  by  partition  to 
accept  land  of  the  other  heirs  in  lieu  of  her  interest  so  sold.-* 

The  widow  cannot  be  deprived  of  her  interest  in  the  land  with- 
out her  own  fault  and  without  her  consent,  express  or  implied; 
and  the  mere  receipt  by  her  of  the  proceeds  of  the  sale  of  land  as 
part  of  her  distributive  share  of  her  husband's  estate,  or  her 
presence  at  the  sale,  will  not  work  an  estoppel  against  her."^ 

If  her  interest  has  been  sold  without  her  consent,  she  will  not 
be  barred  a  recovery  of  the  land  by  the  five-year  statute  of  limita- 
tions; but  she  will  be  barred  by  the  limitation  of  fifteen  years. -"^ 

§  219.  Same — The  statute. — If  the  decedent  leave  a  widow, 
and  the  real  estate  owned  by  him  at  his  death  shall  not  exceed  ten 
thousand  dollars  in  value,  the  court  shall  direct  the  sale  of  the 
undivided  two-thirds  part  thereof  for  the  payment  of  said  debts 
and  liabilities;  and  if  the  value  thereof  exceed  ten  thousand  dol- 
lars, and  do  not  exceed  twenty  thousand  dollars,  the  court  shall 
order  the  sale  of  the  undivided  three-fourths  thereof;  and,  if  it 
exceed  in  value  twenty  thousand  dollars,  the  undivided  four- 
fifths  thereof,  for  said  purpose." 

If  a  husband  dies  testate  or  intestate,  leaving  a  widow,  one- 

"Hanlon    v.    Waterbury,    31    Ind.  husband,    and    being   a    party   to    the 

168;   Elliott  v.   Frakes,  71   Ind.  412;  proceeding  fails  to  set  up  her  claim, 

Unfried  v.  Heberer,  63  Ind.  dl ;  Arm-  she  will  be  bound  by  the  order  of  sale, 

strong  V.  Cavitt,  78  Ind.  476 ;  Compton  Hutchinson  v.  Lemcke,   107  Ind.   121, 

V.   Pruitt,  88  Ind.   171 ;   Matthews  v.  8  N.  E.  71. 

Pate,  93  Ind.  443.  -'Nutter  v.   Hawkins,  93  Ind.  260; 

=^  Compton   V.    Pruitt,   88   Ind.    171.  Compton  v.  Pruitt,  88  Ind.  171;  Irey 

If   a   widow   claims   to   own    all   the  v.  Mater,  134  Ind.  238,  Zl  N.  E.  1018. 

lands  as  a  tenant  by  entirety  with  her  ""  Burns'  R.  S.   1908,  §  2864. 


§    219  DISPOSITION    OF    REAL    PROPERTY.  325 

third  of  his  real  estate  shall  descend  to  her  in  fee-simple  free 
from  all  demands  of  creditors :  Provided,  however,  That  where 
the  real  estate  exceeds  in  value  ten  thousand  dollars,  the  widow 
shall  have  one-fourth  only,  and  where  the  real  estate  exceeds 
twenty  thousand  dollars,  one-fifth  only,  as  against  creditors.^^ 

The  court  in  the  case  of  Hutchinson  v.  Lemcke  et  al.,  107  Ind. 
121,  on  page  131,  in  summing  up  the  propositions  of  law  to  be 
deduced  from  the  foregoing  line  of  decisions,  say,  that  they  de- 
cided, first,  that  the  courts  have  no  authority  to  order  the  sale 
of  lands  to  pay  debts  against  the  decedent's  estate  except  the 
lands  belonging  to,  and  forming  a  part  of,  the  estate;  second, 
that  upon  the  death  of  the  husband,  one-third,  one-fourth,  or  one- 
fifth  of  his  real  estate,  according  to  the  value  of  the  whole,  de- 
scends to,  and  becomes  the  property  of  his  widow  in  fee-simple, 
free  from  all  demands  of  creditors,  and  does  not  belong  to,  or 
form  a  part  of,  the  decedent's  estate;  third,  that  parties  to  a  pro- 
ceeding by  the  administrator  to  obtain  an  order  for  the  sale  of 
real  estate  to  pay  debts  are  bound,  and  only  bound,  in  the  capacity 
in  which  they  are  sued ;  fourth,  that  the  statement  in  the  petition 
for  such  an  order,  that  there  was  a  surviving  widow,  is,  in  law, 
equivalent  to  a  statement  that  she  is  the  owner  in  fee-simple  of 
the  third,  fourth  or  fifth  part  of  the  real  estate,  according  to  the 
value  of  the  whole,  as  against  all  demands  of  creditors,  and  that, 
therefore,  the  application  is,  in  law  and  in  fact,  only  to  sell  the 
remainder  as  belonging  to,  or  forming  a  part  of,  the  estate.  It 
results  from  these  propositions  that  in  no  case  can  the  court, 
under  our  present  system,  for  the  purpose  of  paying  debts  against 
the  estate,  order  the  sale  of  the  portion  of  the  real  estate  which 
the  widow  owns  by  reason  of  her  marital  rights.  If  she  is  not 
made  a  party  to  the  proceedings  by  the  administrator  to  procure 
an  order  for  the  sale  of  the  real  estate,  of  course,  neither  she  nor 
her  rights  can  be  affected  thereby.  If  she  is  made  a  party  to  such 
proceedings  as  a  widow,  the  record  will  affirmatively  show  her 
rights;  that  as  such  widow  she  owns  a  part  of  the  real  estate; 
that  the  part  she  thus  owns  is  not  a  part  of  the  estate  liable  for 

"^  Burns'  R.  S.  1908,  §  3014. 


326  INDIANA    PROBATE    LAW.  g 


220 


the  debts,  and  hence  cannot  be  sold  for  that  purix)se.  And  thus 
the  record  will  be  notice  to  the  court  and  to  the  world  that  her 
portion  of  the  real  estate  cannot  be,  and  has  not  been,  sold  by  the 
administrator.  A  statement  of  the  real  estate  of  which  the  de- 
cedent was  the  owner  is  necessarily  a  statement  that  the  widow 
owns  a  portion  of  it,  which  is  not  subject  to  sale  by  the  adminis- 
trator. 

§  220.  Same — When  her  interest  may  be  sold. — There  are 
only  two  instances  in  which  the  court  has  the  power  to  order  the 
sale  of  the  whole  real  estate  of  a  decedent,  including  the  widow's 
interest,  in  a  proceeding  by  the  executor  or  administrator  to  sell 
the  decedent's  real  estate  to  pay  debts.  One  is  where,  under  the 
provisions  of  the  statute  authorizing  a  partition  of  the  widow's 
interest,-''  it  is  found  that  such  interest  cannot  be  set  off  to  her  in 
severalty  without  damage  to  all  the  owners  and  injury  to  the  sale 
of  the  land ;  in  such  case  the  court  may  direct  the  sale  of  the 
whole  land,  including  the  interest  of  the  widow,  but  the  full 
share  of  the  widow  in  the  gross  proceeds  of  the  sale  must  be  paid 
to  her."" 

The  other  instance  is  where  her  interest  in  the  deceased  hus- 
band's real  estate  is  liable  to  sale  to  satisfy  some  mortgage  or 
other  lien  upon  the  real  estate,  in  which  she.  by  some  act  or  con- 
sent, has  bound  herself.  In  this  case  the  court  can  order  the 
whole  of  the  land  sold  to  pay  such  lien,  and  may  order  the  pay- 
ment to  the  widow  of  her  share  or  such  part  of  her  share  out  of 
the  gross  proceeds  of  such  sale  as  shall  remain  after  satisfying 
the  lien.^^ 

In  these  two  instances  the  widow's  interest  in  her  deceased 

husband's  real  estate  may  be  ordered  sold  in  a  proceeding  by  his 

personal  representative  to  make  assets  for  the  payment  of  his 

debts,  whether  she  consents  or  not,  but  in  either  case  her  share  of 

such  real  estate  is  no  more  liable  for  the  payment  of  the  debts, 

except  as  to  the  particular  lien  or  liens,  than  it  is  in  other  cases. 

And  when  the  lien  for  which  the  land  has  been  sold  has  been 

='  Burns'  R.  S.  1908,  §  2865.  ''  Lewis   v.   Watkins,   ISO  Ind.   108, 

'"Lewis  V.  Watkins,  150  Ind.  108,  49  N.  E.  944;  Shobe  v.  Brinson,  148 
49  N.  E.  944.  Ind.  285,  47  N.  E.  625. 


§    221  DISPOSITION    OF    REAL    PROPERTY.  327 

satisfied,  she  is  entitled  to  her  full  share  of  the  gross  proceeds  of 
the  sale  if  so  much  remains,  and  if  not,  she  is  entitled  to  all  that 
does  remain,  and  the  court  has  no  power  to  direct  a  contrary  dis- 
position of  it.  For  all  the  rules  limiting  the  power  of  the  court 
to  order  the  sale  of  the  interest  of  the  widow  apply  with  equal 
force  to  any  effort  of  the  court  to  dispose  of  her  share  of  the 
proceeds  after  sale.^"  The  widow's  statutor}'  allowance  and  her 
interest  in  her  husband's  real  estate  can  only  be  reduced  by  the 
amount  necessary  to  defray  the  expenses  of  administration,  last 
sickness,  and  funeral  of  the  deceased  husband. ^^ 

.§  221.  Same — Sale  to  pay  liens. — If  the  interest  of  the 
widow  in  the  real  estate  of  a  deceased  husband  be  liable  to  sale  to 
satisfy  a  lien  on  such  real  estate,  the  court  shall  have  power,  in 
proceedings  for  the  sale  of  such  real  estate  for  the  payment  of 
debts,  to  direct  the  sale  of  the  whole  thereof,  including  the 
widow's  interest,  to  discharge  such  lien,  and  to  order  the  payment 
to  her  of  her  share  of  the  gross  proceeds  of  the  sale  after  satisfy- 
ing such  hen.^* 

The  right  of  the  widow,  under  the  statute,  to  an  interest  in  her 
deceased  husband's  real  estate  is  absolute  against  his  creditors, 
unless  by  joining  with  her  husband  in  a  mortgage  of  such  real 
estate  she  has  waived  her  right,  and  even  then  the  waiver  operates 
only  in  favor  of  the  mortgagee;  and  other  creditors  cannot  reap 
advantages  against  her  from  the  fact  that  she  has  thus  joined  in 
a  mortgage  to  one. 

A  man  died  intestate  leaving  no  estate  except  two  separate 
tracts  of  land,  upon  each  of  which  was  a  separate  mortgage  in 
which  the  wife  had  joined.  The  administrator  of  his  estate  hav- 
ing obtained  an  order  of  court  to  sell  the  lands  for  the  purpose  of 
satisfying  the  mortgages,  first  sold  one  tract  and  paid  off  the 
mortgages  thereon  and  then  paid  to  the  widow  one-third  of  the 
residue,  applying  the  balance  on  the  general  debts  of  the  estate. 
He  then  sold  the  other  tract  and  paid  off  the  mortgage  upon  it 

""  Lewis  V.  Watkins,  150  Ind.  108,  49  ''  Comer  v.  Light,  —  Ind.  —  93  N. 

X.    E.   944;    Denton   v.    Arnold,    151  E.  660. 

Ind.   188,  51    X.   E.  240;   Overturf  v.  '*  Burns'  R.  S.  1908,  §  2866. 
Martin,  170  Ind.  308,  84  X.  E.  531. 


328  INDIANA  PROBATE  LAW.  §  221 

and  gave  the  widow  one-third  of  the  proceeds  remaining  from 
that  sale.  Held,  that  he  should  have  applied  the  balance  of  the 
proceeds  of  the  first  sale,  after  satisfying  the  mortgage  and  pay- 
ing the  widow  one-third  of  the  gross  proceeds  remaining,  to  the 
discharge  of  the  mortgage  upon  the  second  tract  and  not  to  the 
claims  of  the  general  creditors.^^ 

It  is  the  duty  of  an  administrator  to  apply  all  money  not  needed 
to  pay  claims  expressly  preferred  by  statute  to  the  payment  of 
liens  upon  real  estate  so  as  to  secure  to  the  widow  her  interest  in 
such  real  estate  free  from  all  incumbrance.^^ 

The  policy  of  the  law  is  to  so  administer  a  decedent's  estate,  if 
it  can  be  done,  as  to  secure  to  the  widow  her  interest  in  the  lands 
of  her  husband.  To  this  end  it  is  the  duty  of  the  administrator 
to  apply  all  the  personal  assets  in  his  hands,  if  necessar}%  to  pay 
hens  on  the  land,  even  to  the  exclusion  of  the  general  creditors; 
and  he  is  also  bound  to  apply  two- thirds  of  the  proceeds  of  the 
sale  of  real  estate  of  such  deceased  husband,  if  necessary,  to  that 
purpose.*^ 

It  is  the  widow's  right  to  have  her  interest  in  the  lands  of  her 
deceased  husband  discharged  from  a  mortgage  existing  at  the 
time  of  his  death  before  the  payment  of  the  general  debts  of  the 
estate.^  ^ 

For  she  is  entitled  to  have  the  personal  assets,  in  so  far  as  the 
same  are  not  required  in  the  payment  of  claims  which  are  ex- 
pressly preferred,  applied  to  the  payment  of  mortgages  or  other 

^' Perry    v.    Borton,    25    Ind.    274;  payment  of  the  general  debts.     State, 

Sparrow  v.  Kelso,  92  Ind.  514;  Mor-  ex  rel.  v.  Mason,  21  Ind.  171;   Perry 

gan  V.  Sackett,  57  Ind.  580;  McCord  v.  Borton,  25  Ind.  274;  Hunsucker  v. 

V.  Wright,  97  Ind.  34.  Smith,  49  Ind.  114;  Morgan  v.  Sack- 


*°  Sparrow  v.  Kelso,  92  Ind.  514 
State,  ex  rel.,  v.  Mason,  21  Ind.  171 
Clarke    v.    Henshaw,    30    Ind.    144 


ett,    57    Ind.    580;    Bowen   v.    Lingle, 
119  Ind.  560,  20  N.  E.  534;  Home  &c. 
Bank   v.    Peoples   &c.    Bank,   —   Ind. 
Newcomer  v.  Wallace,  30  Ind.  216.        App.   —    96   N.    E.    710.     If   the   in- 
^'  Bowen    v.    Lingle,    119    Ind.    560,     terest   of    the    widow    is    sold   under 
20  X.  E.  534.  a  mortgage  to  pay  the  debts  of  her 

''^  Cunningham    v.    Cunningham,    94     husband  she  is  entitled  to  reimburse- 
Ind.  557;  State  v.  Kelso,  94  Ind.  587.     ment  out  of  the  personal  estate  be- 
The  widow  of  a  decedent  has  a  right     fore  payment  of  general  debts.     Mc- 
to   have  the   liens  on  the   lands   paid     Cord  v.  Wright,  97  Ind.  34. 
out  of  the  personal  estate  before  the 


§221 


DISPOSITION    OF    REAL    PROPERTY. 


329 


liens  which  affect  her  interest  in  the  estate  and  to  clear  the  same 
of  incumbrances.  And  if  the  personal  assets  available  are  not 
sufficient  to  protect  her  interest  she  is  entitled  to  have  all  the 
real  estate  of  her  deceased  husband  other  than  that  which  de- 
scends to  her,  sold  and  the  proceeds  applied  to  the  payment  of 
liens  on  the  real  estate  so  as  to  protect  the  interest  the  law  gives 
her.^^ 

A  mortgage  for  purchase-money  of  real  estate  will  bind  the 
widow's  interest  in  the  mortgaged  premises  whether  she  signed 
such  mortgage  or  not,  and  such  interest  is  liable  to  sale  at  the 
hands  of  the  executor  or  administrator  of  the  husband  to  satisfy 
such  mortgage. ^° 

Where  the  whole  of  a  decedent's  land  has  been  sold,  after  his 
death,  under  a  foreclosure  of  mortgages  in  which  his  wife  had 
joined,  she,  as  his  widow,  is  entitled  to  be  reimbursed  for  her 
interest  in  such  lands  out  of  the  personal  estate  of  her  husband  in 
the  hands  of  his  administrator,  in  preference  to  the  claims  of  the 
general  creditors.*^ 

of  the  estate,  and  she"  (the  widow) 
"has  a  right  to  require  him,  to  make 
his  claim  out  of  other  assets,  per- 
sonal and  real,  if  he  can  do  so  after 
the  payment  of  such  expenses  above 
named  as  have  preference,  and  there- 
by save  to  her  the  third  of  the  land 
to  which  she  would  be  entitled  ex- 
cept for  the  mortgage."  The  case  of 
State,  ex  rel.,  v.  Mason,  21  Ind.  171; 
Clarke  v.  Henshaw,  30  Ind.  144; 
Xewcomer  v.  Wallace,  30  Ind.  216, 
are  referred  to  as  declaring  the  same 
general   principle. 

*"  Burns'  R.  S.  1908,  §  3033;  Den- 
ton v.  Arnold,  151  Ind.  188,  51  N.  E. 
240;  Frain  v.  Burgett,  152  Ind.  55, 
50  X.  E.  873,  52  N.  E.  395;  Sharts 
v.  Holloway,  150  Ind.  403,  50  N.  E. 
386;  Vandevender  v.  Moore,  146  Ind. 
44,  44  X.  E.  3;  Overturf  v.  Martin, 
170  Ind.  308,  84  N.  E.  531. 

"McCord  V.  Wright,  97  Ind.  34. 
While  the  widow's   interest  may  not 


='Shobe  v.  Brinson,  148  Ind.  285, 
47  N.  E.  625;  Lewis  v.  Watkins,  150 
Ind.  108,  49  X.  E.  944;  Overturf  v. 
Martin,  170  Ind.  308,  84  X.  E.  531; 
Garretson  v.  Garretson,  43  Ind.  App. 
688,  88  X.  E.  624;  Denton  v.  Arnold, 
151  Ind.  188,  51  N.  E.  240. 

In  Perry  v.  Borton,  25  Ind.  274,  it 
was  held  that  the  widow's  rights  are 
paramount,  and  that  the  administra- 
tor must  apply  all  money,  not  re- 
quired for  the  payment  of  claims 
expressly  preferred  by  statute,  to  the 
payment  of  mortgage  liens,  in  order 
that  the  widow  may  receive  her  one- 
third  of  the  real  estate  free  from 
incumbrance.  According  to  the  doc- 
trine of  that  case,  neither  the  heirs 
nor  the  general  creditors  possess  any 
claim  which  will  be  allowed  to  re- 
duce the  widow's  interest.  The  same 
doctrine  is  asserted  in  Hunsucker  v. 
Smith,  49  Ind.  114,  where  it  was 
said :    "It  is  his  duty  as  administrator 


330  INDIANA  PROBATE  LAW.  g  222 

If  a  decedent,  in  his  lifetime,  invests  his  wife's  money  in  real 
estate,  and  takes  the  title  in  his  own  name  without  her  knowledge 
or  consent,  she  will  have  a  just  and  valid  claim  against  his  estate 
after  his  death  for  the  amount  of  her  money  so  invested/'-  Or 
she  might,  under  certain  circumstances,  enforce  a  resulting  trust 
in  her  favor  against  the  land,  and  such  land  could  not  be  held 
liable  for  his  debts.*^  But  a  party  whose  money  is  invested  in 
lands  by  another  in  fraud  or  breach  of  trust  is  not  bound  to  take 
the  land,  or  insist  on  his  lien,  but  may  demand  payment  of  the 
money.** 

The  interest  of  the  widow  is  liable  to  the  lien  of  judgments 
existing  against  her  hus1)and's  real  estate  at  the  date  of  mar- 
riage.*^ Also  the  lien  of  a  vendor  for  the  purchase-money  due 
him.*« 

g  222.  Same — Setting  off  the  widow's  interest. — If  the  de- 
cedent leave  a  widow,  and  it  appear  to  the  court  tliat  it  would  be 
to  the  interest  of  the  estate  that  her  share  in  the  real  estate  of  the 
decedent  be  set  off  to  her  in  severalty,  and  the  residue  subjected 
to  sale,  the  court  shall  cause  such  partition  to  be  made  in  said 
proceeding  in  like  manner  as  is  pro\ided  by  law  for  the  partition 
of  real  estate  among  tenants  in  common.  If  the  commissioners 
report  that  such  partition  cannot  be  made  without  damage  to  the 

be  sold  by  her  husband's  administra-  Itound   by   tlie   order.     Hutchinson  v. 

tor,  yet  if  she  is  dead  and  her  heirs  Lcmcke,  107  Ind.  121,  8  N.  E.  71. 

are  made  parties  to  a  proceeding  by  *"  Tracy    v.    Kelley,    52    Ind.    535 ; 

such   administrator  to  sell  the  whole  Malady    v.    McEnary,    30    Ind.    273; 

land,  such  heirs  will  be  bound  by  the  Xoble  v.  Morris,  24  Ind.  478. 

order  obtained.     Bumb  v.   Gard,    107  "2   Story's  Equity,  §  1211. 

Ind.  575,  8  N.  E.  713.  "  Whitehead    v.    Cummins,    2    Ind. 

'^Bristor    v.    Bristor,   93   Ind.    281;  58. 

Armacost  v.  Lindley,  116  Ind.  295,  19  ""Keith    v.    Hudson,    74    Ind.    333; 

N.  E.  138;  Dayton  v.  Fisher,  34  Ind.  McMahan     v.      Kimball,     3     Blackf. 

356;    Garner  v.   Graves,  54  Ind.    188.  (Ind.)    1;  Crane  v.  Palmer,  8  Blackf. 

A  widow  claimed  the  entire  land  as  (Ind.)   120;  Fisher  v.  Johnson,  5  Ind. 

tenant  by  entirety  with  her  husband.  492 ;    Talbott   v.    Armstrong,    14    Ind. 

She  was  made  party  to  a  proceeding  254;   Patton  v.  Stewart,  19  Ind.  233; 

by  the  administrator  of  the  husband  Alexander   v.    Herbert,   60    Ind.    184; 

to  sell  such  land.    She  did  not  appear  Ballew  v.  Roler,  124  Ind.  557,  24  N. 

or  set  up  her  claim.     Held,  she  was  E.  976,  9  L.  R.  A.  481  n. 


I    223  DISPOSITION    OF    REAL    PROPERTY.  331 

owners,  then  the  court  may  direct  the  whole  of  the  real  estate, 
including  the  widow's  interest,  to  be  sold  by  the  executor  or  ad- 
ministrator, and  the  full  share  of  the  widow  in  the  gross  proceeds 
of  the  sale  paid  to  her  on  confirmation  of  the  sale.^^ 

An  administrator  or  executor  may  also  compel  partition,  as  a 
tenant  in  common  or  joint  tenant  may  do,  whenever,  in  the  dis- 
charge of  his  duties  as  such  executor  or  administrator,  it  shall  be 
necessar}'  for  him  to  sell  the  estate  of  the  decedent  therein/' 

In  an  action  by  a  widow  against  the  heirs  and  the  adminis- 
trator of  the  estate  for  a  partition  of  her  deceased  husband's 
lands,  a  cross-bill  filed  by  the  administrator  seeking  to  subject 
the  land  to  sale  for  the  payment  of  debts  will  not  lie/'  And 
where,  in  a  partition  proceeding  between  a  widow  and  the  heirs 
of  a  decedent,  the  land  is  sold  prior  to  the  final  settlement  of  the 
estate  of  such  decedent,  and  the  purchaser  of  the  land,  to  save  it 
from  a  sale  by  the  administrator  of  the  estate  to  pay  debts,  pays 
to  such  administrator  the  amount  of  such  debts,  such  purchaser 
cannot  recover  the  amount  so  paid  from  the  widow  and  hen-s. 
The  payment  by  him  to  the  administrator  is  a  voluntary  pay- 
ment.'" 

Under  the  first  section  of  the  statute  above  set  out  the  widow's 
interest  in  her  husband's  real  estate  may  be  sold  whether  she  is 
consenting  thereto  or  not;  but,  if  so  sold,  she  becomes  entitled  to 
her  full  share  out  of  the  gross  proceeds  of  such  sale.  Her  share 
in  the  proceeds  of  such  sale  is  no  more  liable  to  the  debts  of  her 
husband  than  was  the  land  out  of  which  they  are  derived. '' 

S  223.  Same — Right  of  election. — The  ancestor  by  his  own 
act  may  cut  ot¥  the  heir,  but  the  husband  cannot  cut  off  his  wife 
by  any  act  he  may  do  either  by  deed  or  will.  But  by  making  a 
provision  for  her  in  his  will  which  is  intended  by  him  to  be  in 
lieu  of  her  legal  rights  in  his  estate,  he  can  thus  after  his  death 

*'  Burns'  R.  S.   1908,  §  2865 ;  Lewis         '"  Douthitt   v.    Smith,   69   Ind.   463 ; 
V.    Watkins,    150   Ind.    108,   49   X.   E.     Clayton  v.  Bloiigh,  93  Ind.  85. 
944  '"Weakley  v.  Conradt,  56  Ind.  430. 

"Burns'  R.  S.  1908,  §  1243.  "Lewis   v.   Watkins,   150   Ind.   108, 

49  N.  E.  944. 


332 


INDIANA    PROBATE   LAW.  §    22^ 


put  her  to  her  election  to  accept  the  provision  made  for  her  in  his 
will  or  to  take  under  the  law." 

The  widow  takes  an  interest  in  her  deceased  husband's  real 
estate  by  descent  as  his  heir,  and  if  other  provision  is  made  for 
her  by  the  will  of  her  husband,  she  may  elect  to  take  under  the 
will  or  by  the  law,  and  such  election  requires  on  her  part  the  per- 
fomiance  of  some  positive  affirmative  act,  indicating  her  inten- 
tion to  elect.  Formerly,  if  she  remained  silent  as  to  such  election, 
she  was  presumed  to  hold  by  descent  and  not  under  the  will. 
Now,  however,  this  presumption  is  changed,  and  if  she  does  not, 
within  the  time  given  by  the  statute,  and  in  the  manner  therein 
pointed  out,  elect  in  writing,  she  will  be  presumed  to  have  taken 
the  provision  made  for  her  by  the  will,  and  not  under  the  law." 

The  right  of  election  is  strictly  a  personal  right,  and  can  only 
be  exercised  by  the  widow;  and  if  she  should  die  before  the  time 
for  the  election  had  expired,  the  right  would  expire  with  her  in 
the  absence  of  a  statute  authorizing  an  election  to  be  made  after- 
ward by  her  heirs  or  representatives.''* 

The  right  of  election  is  a  statutory  privilege  conferring  new 
and  important  benefits,  and  outside  of  the  statute  has  no  exist- 
ence ;  and  it  must  therefore  be  exercised  in  substantial  compliance 
with  the  statute.'^ 

The  statute  authorizing  an  election  by  the  widow,  while  in 
terms  applying  to  her  interest  in  his  lands,  is  also  held  to  apply 
to  the  specific  allowance  of  five  hundred  dollars,  given  her  by 
statute,  and  the  widow  may  bar  herself  by  accepting  provisions 
made  for  her  in  her  husband's  will  which  are  inconsistent  with 
her  right  to  retain  such  amount  under  the  law.^" 

==WetherilI  v.  Harris,  67  Ind.  452;  Ewing  v.  Ewing,  44  Mo.  23;  Fosher 

Hopkins  v.  Quinn,  93  Ind.  223;  Ren-  v.   Guilliams,  120  Ind.   172,  22  N.  E. 

ner  v.   Ross,   111   Ind.  269,   12  N.   E.  118.     When   a   widow   elects   to   take 

508;  Heavenridge  v.  Nelson,  56  Ind.  under    a   will    instead    of   under   the 

90;  Leach  v.  Prebster,  39  Ind.  492.  law,  lands  devised  to  her  will  be  lia- 

"' Burns'  R.   S.  1908,  §§  3043,  3045,  ble  to  be  sold  to  pay  the  debts  of  the 

et  seq.  decedent.      Kayser    v.    Hodopp,    116 

'*  Pinkerton   v.    Sargent,   102   Mass.  Ind.  428,  19  N.  E.  297. 
568;    Woerner    Law    Administration,         '"  Shafer   v.    Shafer,    129    Ind.    394, 

270;  Eltzroth  v.  Binford,  71  Ind.  455.  28  N.  E.  867;   Shipman  v.  Keys,  127 

"Price  V.  Woodford,  43  Mo.  247;  Ind.   353,  26  N.  E.  896;   Claypool  v. 


§    224  DISPOSITION    OF    REAL    PROPERTY.  333 

As  to  when  the  widow  will  be  put  to  her  election  the  rule  is 
thus  stated :  "Where  a  husband  has  made  specific  provision  for 
his  widow,  and  has  also  disposed  of  all  his  other  property  in  such 
a  way  as  to  make  it  apparent  that  the  assertion  by  the  widow  of 
the  right  to  take  both  under  the  law  and  under  the  will  would 
defeat  the  manifest  purpose  of  the  testator,  she  will  be  confined 
to  the  provisions  made  by  the  will"^'  unless  she  make  her  election 
according  to  the  statute. 

In  all  cases  where  there  is  a  will,  the  widow  is  conclusively 
bound  by  it,  unless  she  renounces  its  provisions  and  elects  in  the 
manner  pointed  out  in  the  statute.^* 

And  when  a  right  depends  upon  the  fact  that  the  widow  did 
elect  to  take  under  the  will,  the  party  asserting  the  right  must 
allege  the  fact."'' 

§  224.  The  interest  of  the  widower. — The  statute  provides 
that  if  a  wife  die  testate  or  intestate,  leaving  a  widower,  one- 
third  of  her  real  estate  shall  descend  to  him,  subject  however,  to 
its  proportion  of  the  debts  of  the  wife  contracted  before  mar- 
riage.*"' 

It  is  said  that  "the  inference  from  this  section  manifestly  is 
that  the  right  of  the  surviving  husband  to  one-third  part  of  the 
real  estate  of  which  his  wife  has  died  seized  is  absolute,  except  in 
cases  in  which  this  right  has  been  waived  by  some  agreement, 
either  ante-nuptial  or  post-nuptial,  or  where  he  is  restrained  by 
some  estoppel  which  he  has  imposed  upon  himself."®^ 

It  is  given  him  as  a  substitute  for  the  estate  he  formerly  had  in 

Jaqua,   135   Ind.   499,   35   N.   E.  285;  Fla.  331;  Collins  v.  Collins,  126  Ind. 

Richards  v.  Mollis,  8  Ind.  App.  353,  559,  25  X.  E.  704,  28  N.  E.  190 ;  Cow- 

35  N.  E.  572;  Bower  v.  Bowen,  139  drey     v.     Hitchcock,     103     111.     262; 

Ind.   31,  38   N.   E.   326;   Whetsell  v.  Dougherty  v.  Barnes,  64  Mo.  159. 

Louden,  25   Ind.  App.  257,  57  N.  E.  "'Wilson    v.    Moore,    86    Ind.    244; 

952.  Wetherill    v.    Harris,    67    Ind.    452; 

"INIcDonald  v.  Moak,  24  Ind.  App.  Hopkins  v.  Quinn,  93  Ind.  223. 

528,  57  N.  E.  159 ;  Shafer  v.  Shafer,  ^  Burns'  R.  S.   1908,  §  3016. 

12  Ind.  394,  28  N.  E.  867;   Block  v.  ''Roach    v.    White,    94    Ind.    510; 

Butt,  41  Ind.  App.  487,  84  N.  E.  357.  Leach  v.  Rains,  149  Ind.  152,  48  N. 

="  Fosher  v.  Guilliams,  120  Ind.  172,  E.  858. 
22  X.  E.  118;  Stephens  v.  Gibbes.  14 


334  INDIANA  rnuCATE  LAW.  ^  224 

his  wife's  lands  by  the  curtesy,  and  like  the  estate  the  law  gives 
the  wife  in  the  lands  of  her  husband,  this  statute  should  receive 
a  liberal  construction  for  the  benefit  of  the  family  and  surviving 
children.  For  this  reason  it  is  held  that  the  widower's  interest  in 
the  real  estate  which  descends  to  him  from  his  deceased  wife  is 
not  liable  for  the  general  debts  of  the  wife.  It  is  not  even  liable 
for  the  costs  of  administration,  and  the  expenses  of  her  last  ill- 
ness, nor  for  her  funeral  expenses.  Barring  specific  liens  against 
it  he  takes  such  interest  as  entirely  distinct  and  free  from  the 
claims  of  creditors  as  if  he  had  acquired  it  by  conveyance  from 
some  third  person."- 

Where  the  husband's  interest  in  the  lands  of  his  deceased  wife 
is  incapable  of  i)artition  and  the  court,  on  the  application  of  her 
administrator,  orders  all  the  lands  sold,  such  husband  is  entitled 
to  the  one-third  of  the  gross  proceeds  of  such  sale  and  the  admin- 
istrator cannot  set  off,  as  against  the  widower's  share  in  the  fund 
derived  from  the  sale,  a  judgment  obtained  by  such  administrator 
against  the  husband  for  the  funeral  expenses  of  the  wife;  the 
court  holding  that  the  widower's  one-third  of  such  fund  in  the 
hands  of  the  administrator  did  not  and  could  not  become  assets 
of  the  estate  of  the  wife.®^ 

The  interest  of  the  husband  in  the  land  of  his  deceased  wife  is 
subject,  however,  to  the  payment  of  a  mortgage  placed  thereon 
by  the  wife,  in  which  mortgage  he  had  joined."^  The  in^rest  of 
the  husband  in  lands  of  his  wife  may  be  waived  by  an  ante- 
nuptial settlement  of  their  rights  in  each  other's  property,  and  he 
may  also  estop  himself  by  an  executed  post-nuptial  agreement."' 

The  interest  the  husband  takes  is  liable  to  its  proportionate 
share  of  the  debts  of  the  wife  contracted  before  marriage.     At 

^  Kemph  v.  Belknap,   15   Ind.  App.  553,  68  N.  E.  598 ;  Pearson  v.  Kepner, 

n,  43  N.  E.  891 ;  Weaver  v.  Gray,  Zl  29  Ind.  App.  92,  63  X.  E.  38. 

Ind.  App.  35,  76  N.  E.  795;   Hamp-  *"  Banta  v.  Smith,  41  Ind.  App.  364, 

ton  V.  Murphy,  45  Ind.  App.  513,  86  83  N.  E.  1017;  Kinney  v.  Heuring,  44 

X.  E.  436,  88  N.  E.  876.  Ind.  App.  590,  87  N.  E.  1053,  88  N.  E. 

*"  Weaver  v.  Gray,  Zl  Ind.  App.  35,  865.    Unger  v.  Nellinger,  Zl  Ind.  App. 

76  N.  E.  795.  639,  11  N.  E.  814. 

'*  Herbert  v.  Rupertus,  31  Ind.  App. 


^^0 


DISPOSITION    OF    REAL    PROPERTY.  335 


common  law  his  liability  terminated  at  the  wife's  death,  but  this 
statute  continues  such  liability."" 

Where  the  wife  dies  testate  having  made  provision  for  her 
husband  in  her  will,  he  cannot  hold  both  under  the  will  and  under 
the  law  but  will  be  put  to  his  election,  which  election  must  be 
exercised  bv  him  in  the  same  manner  and  within  the  same  time 
as  is  required  by  law  for  an  election  by  a  widow."  And  though 
the  wife  mav  have  made  no  provision  for  the  husband  in  her 
will  yet  he  may  elect  to  abide  by  the  terms  of  the  will  and  in 
this  way  bar  himself  of  any  claim  to  an  interest  in  her  property.'" 

^  225.    As  to  liens  on  the  real  estate.— If  the  real  estate,  or 
any  part  thereof,  ordered  to  be  sold  shall  be  encumbered  with 
liens,  the  court  shall,  in  the  order  of  sale,  direct  the  sale  of  the 
real  estate  to  discharge  all  or  any  of  the  liens,  or  subject  to  all  or 
any  of  the  liens  thereon.     If  the  sale  be  made  to  discharge  such 
liens  the  purchaser  shall  take  and  hold  the  real  estate  freed  from 
such  lien,  and  the  lien  shall  attach  to  the  fund  arising  from  the 
sale.    If  the  sale  be  made  subject  to  such  lien,  the  purchaser  shall 
execute  his  bond,  payable  to  such  executor  or  administrator,  with 
penaltv  and  surety  to  the  acceptance  of  the  latter,  conditioned 
that  he  will  pav  and  discharge  the  lien  and  hold  the  executor  or 
administrator,  'and  all  others  interested  in  the  estate,  hamiless 
from  all  damages  by  reason  of  such  lien  and  the  claims  secured 
thereby.    Upon  confirmation  of  such  sale,  and  assignment  by  the 
executor  or  administrator  of  such  bond,  without  recourse,  to  the 
holder  of  the  lien,  the  estate  shall  be  discharged  from  the  pay- 
ment of  the  debt  secured  by  such  lien."" 

«•'  Pearson  v.  Kepner,  29  Ind.  App.  widow    of    a    decedent    may    sue    an 

92   63  X.  E.  38.  administrator  for  failing  to  take  the 

"^Burns'  R.  S.  1908,  §§  3046,  3047;  bond    required   by  this   section   when 

Clark  V    Clark,  132  Ind.  25,  31  N.  E.  she  is  injured  by  such  failure.    Spar- 

461-   Rowley  v.   Sanns.  141  Ind.   179,  row  v.  Kelso,  92  Ind.  514.     The  fail- 

40  X    E   674;  Lahr  v.  Ulner,  27  Ind.  ure  of  the  administrator  to  take  the 

\pp   107  60  N   E.  1009.  bond    required   by   this   section    does 

•^Trau'dt     V.     Hagerman.     27     Ind.  not    affect    the    liability    of   the    pur- 

■\pp    150,  60  N.  E.  1011.  chaser  to  pay  the  liens  on  the  lands. 

"  Burns'   R.    S.    1908,   §  2867.     The  Massey  v.  Jerauld,  101  Ind.  270. 


^36  INDIANA    PROBATE    LAW.  §    225 

By  this  statute  an  executor  or  administrator  may  sell  the  de- 
cedent's real  estate  subject  to  liens  existing  thereon,  or  the  court 
may  order  the  land  sold  to  pay  the  liens;  and  where  the  sale  is 
made  to  the  lien-holder  it  amounts  to  an  extinguishment  of  the 
lien.''°  The  court  might,  in  the  order,  combine  both  objects,  and 
where  real  estate  is  ordered  to  be  sold  to  discharge  the  lien  of 
judgments  upon  it  the  title  relates  back  to  the  date  of  the  oldest 
judgment.^^ 

Where  nothing  appears  to  the  contrary,  sales  of  land  by  execu- 
tors or  administrators  are  made  subject  to  all  liens  against  such 
land.  There  is  no  warranty  in  such  sales  or  in  the  conveyance 
usually  made  by  an  executor  or  administrator,  and  unless  other- 
wise ordered  by  the  court,  they  sell  and  convey  the  land  subject 
to  all  incumbrances.'-  Where  taxes  have  accrued  upon  the  land 
of  a  person  before  his  death,  they  become  a  personal  charge 
against  him  as  well  as  a  lien  against  the  land ;  and  sucli  taxes 
should  be  paid  by  the  executor  or  administrator  because  they  are 
debts  against  the  estate.  But  the  law  does  not  make  it  the  duty  of 
an  executor  or  administrator  to  pay  taxes  accruing  on  land  after 
the  death  of  the  testator  or  intestate.  As  the  lands  descend  di- 
rectly to  the  heir,  he  should  pay  the  taxes  accruing  after  the  de- 
scent is  cast." 

'"Foltz     V.     Peters,     16    Ind.    244;  Boaz    v.    McChesney,    53    Ind.    193; 

Clarke    v.     Henshaw,    30    Ind.     144.  Headrick    v.    Wisehart,    41    Ind.    87; 

When    lands    are    sold    to    discharge  Moody   v.    Shaw,    85    Ind.    88.      The 

liens,    all    the   proceeds    must   be   ap-  purchaser  buys  subject  to  all  incum- 

plied  on  the  liens  if  necessary  to  sat-  brances    except    those    for   which    the 

isfy  the  same.     Ryker  v.  Vawter,  117  land  is   sold.     Loudon   v.   Robertson, 

Ind.   425,  20   N.   E.  294.     Taxes  ac-  5   Blackf.    (Ind.)    276;    Foltz   v.    Pe- 

cruing   on    the   lands    of    a   decedent  ters,  16  Ind.  244;  Massey  v.  Jerauld, 

before   his   death   should  be  paid  by  101  Ind.  270.     The  purchaser  of  real 

his      administrator.        Henderson     v.  estate  at  an  administrator's  sale  takes 

Whitinger,    56    Ind.    131.      The    pur-  the  land  subject  to  all  incumbrances, 

chaser  of  lands  will  not  be  permitted  unless    the    order    of    sale    otherwise 

to  show  that  it  was  verbally  agreed  direct,    and    the    legal    effect    of    the 

that  he  was  not  to  pay  the  liens  on  contract  cannot  be  contradicted  by  a 

the  lands.     Moody  v.   Shaw,  85  Ind.  verbal     contemporaneous     agreement. 

^8.                                                       .,  Moody  V.  Shaw,  85  Ind.  88. 

"  West  V.  Townsend,  12  Ind.  434.  "  Henderson  v.  Whitinger,  56  Ind. 

^'Martin   v.    Beasley,  49   Ind.   280;  131;    Boaz    v.    McChesney,    53    Ind. 


§    226  DISPOSITION    OF    REAL    PROPERTY.  337 

While  the  doctrine  of  caveat  emptor  is  appHed  to  sales  made  by 
an  executor  or  administrator,  yet  where  the  sale  is  void,  or  the 
title  fails,  the  equitable  doctrine  that  the  purchaser  may  recover 
the  amount  paid  from  the  judgment  defendant,  or  be  subrogated 
to  the  rights  of  the  judgment  creditor,  is  applied  as  in  other 
judicial  sales."'* 

A  mechanic's  lien  against  a  decedent's  land  may  be  enforced 
against  his  heirs,  but  no  personal  judgment  may  be  had  against 
them.'^ 

As  the  lien  attaches  to  the  realty,  and  the  proceedings  to  en- 
force it  are  in  rem,  and  as  the  remedy  would  be  very  inadequate 
if  the  death  of  the  owner  defeated  the  lien,  the  equity  of  the 
statute  requires  that  the  lien  should  survive,  and  bind  the  property 
in  the  hands  of  the  heirs.'" 

A  proceeding  to  enforce  such  lien  cannot  be  maintained  against 
an  administrator  or  executor  alone. 

The  lien-holder,  however,  may  file  a  claim  against  the  estate 
for  the  amount  due  him ;  or,  if  the  property  is  sold,  discharged  of 
his  lien,  the  lien  will  attach  to  the  fund. 

§  226.  Mortgages  on  the  real  estate. — The  lien  of  a  mort- 
gage against  a  decedent's  real  estate  cannot  be  divested  by  the  sale 
of  such  land  by  the  administrator."  An  executor  or  administra- 
tor must  take  cognizance  of  mortgages  executed  by  the  decedent 

193;    Moody    v.    Shaw,    85    Ind.    88.  293,  2S  Am.  Dec.  Ill;  Muir  v.  Berk- 

To    a    suit    by    an    administrator    de  shire,    52    Ind.     149;     Westerfield    v. 

bonis    non,     on    a    promissory    note  WiUiams,    59    Ind.    221 ;    Willson    v. 

given  for  the  purchase  of  land  at  an  Brown,  82  Ind.  471 ;   Short  v.  Sears, 

administrator's    sale,    an    answer    of  93   Ind.   505;    Porter   v.   Jackson,   95 

set-off  for  taxes  paid  on  the  land  by  Ind.  210,  48  Am.  Rep.  704. 

the  defendant,  at  the  request  of  the  •'  McGrew  v.  McCarty,  78  Ind.  496. 

former   administrator,    is    insufficient,  '"  Piter  v.   Ward,  8  Blackf.    (Ind.) 

the  mere  promise  of  the  administra-  252 ;  Dobbs  v.  Enearl,  4  Wis.  471. 

tor  being  insufficient  to  bind  the  es-  ^  McCallam    v.    Pleasants,    67    Ind. 

tate  in  the  absence  of  facts  showing  542.     To  divest  the   lien   of  a  mort- 

the  right  to  charge  the  estate,  or  that  gage    by    an    administrator's    sale    of 

the    consideration     for    the    promise  land,  the  mortgagee  must  be  made  a 

arose   prior   to   the   intestate's   death,  party    to    the    proceeding,    and    the 

Brown  v.  Forst,  95  Ind.  248.  court    must    order    the    sale    of    the 

•'Muir  V.   Craig,   3   Blackf.    (Ind.)  land   to    discharge   the   lien.     Where 

22— Pro.  L.\w. 


338  INDIANA  PROBATE  LAW.  §  226 

in  his  lifetime." -  And  unless  the  property  mortgaged  be  sold  under 
the  provisions  of  this  statute  for  the  express  purpose  of  paying 
the  mortgage,  the  lien  of  the  mortgage  is  not  released  save  upon 
the  full  payment  of  the  mortgage  debt.'"  A  mortgagee  of  an  un- 
recorded mortgage  is  entitled  to  a  lien  for  the  amount  of  tlie 
mortgage  debt  on  the  money  in  the  hands  of  the  administrator 
arising  from  a  sale  of  the  mortgaged  premises,  althougli  such 
sale  was  made  by  the  administrator  without  knowledge  of  the 
mortgage.  It  is  only  subsequent  purchasers  and  incumbrancers 
in  good  faith  and  for  value  who  are  protected  against  an  unre- 
corded mortgage.  As  against  all  the  world  besides,  the  registry 
imparts  no  force  or  virtue  whatever  to  the  instrument.  As 
against  the  mortgagor  and  the  estate  while  it  remains  in  his 
hands,  the  lien  is  as  perfect  without  registry  as  with  it.  It  is  so, 
also,  against  his  general  creditors  while  he  lives,  and  after  his 
death  no  change  is  wrought  in  the  rights  of  the  mortgagee  with 
respect  to  the  other  creditors  by  his  decease.  The  administrator 
is  his  personal  representative,  and  takes  no  better  right  than  the 
intestate  had.  He,  in  fact,  takes  no  estate  whatever  in  the  lands 
mortgaged,  but  a  duty  with  reference  thereto  devolves  upon  him 
in  the  performance  of  his  trust  when  he  discovers  that  a  sale  of 
such  lands  will  be  necessary  to  satisfy  the  indebtedness.  It  is  his 
duty  to  inform  himself  of  the  condition  of  the  whole  estate;  but 
his  negligence  in  making  inquiries  as  to  liens  upon  the  real  estate 

the  mortgagee  was  not  a  party  to  the  complaint,    asks    the    foreclosure    of 

proceeding  to  sell,  and  the  court  did  his  mortgage,  and  it  is  ordered  that 

not  order  a  sale  to  pay  his  mortgage,  the  mortgage  be  foreclosed  as  to  part 

the  lien  of  the  mortgage  was  not  di-  of  the   real   estate  embraced  therein, 

vested,    and    the    purchaser    took   the  and  that  the  remainder  be  sold  by  the 

land    subject    to    such    lien,    notwith-  administrator     discharged     of     liens, 

standing    the    administrator's    assur-  any  deficiency  in  favor  of  the  mort- 

ance     to     the     contrary.       Crum     v.  gagee  to  be  paid  by  such  administra- 

Meeks,  128  Ind.  360,  27  N.  E.  722.  tor.  in  its  order  of  priority,  upon  the 

^*  Cole  V.  McMickle,  30  Ind.  94.  further  order  of  the  court,  no  ques- 

'^  Clarke  v.   Henshaw,  30  Ind.   144.  tion  of  priority  as  between  the  mort- 

Where,  in  a  proceeding  by  an  admin-  gage  and  the  debts   for  the  payment 

istrator    to    sell    real    estate    to    pay  of  which  the  land  is  asked  to  be  sold 

debts,    which    are    not    shown    to    be  is    adjudicated.      Ryker    v.    Vawter, 

senior  claims,  a  mortgagee,  by  cross-  117  Ind.  425,  20  N.  E.  294. 


§    226  DISPOSITION    OF    REAL    PROPERTY.  339 

to  be  sold  will  not  be  permitted  to  profit  one  creditor  at  the  ex- 
pense of  another.  The  fact  that  the  land  is  sold  without  notice 
of  a  mortgage  thereon  cannot  be  of  avail  to  the  general  creditors 
who  had  no  notice  of  such  mortgage.  They  are  not  in  a  position  to 
avail  themselves  of  such  want  of  notice,  being  neither  purchasers 
nor  incumbrancers.  The  mortgagee  is  entitled  to  the  amount  of 
his  mortgage  out  of  the  proceeds  of  the  mortgaged  property 
against  general  creditors  of  the  estate,  even  where  such  estate  is 
insolvent.®" 

And  where,  by  order  of  court,  the  land  is  ordered  sold  for  the 
express  purpose  of  paying  off  a  mortgage  lien  thereon,  the  lien  is 
transferred  to  the  fund  in  the  hands  of  the  administrator  arising 
from  such  sale,  and  as  to  that  fund  takes  preference  in  payment, 
not  only  over  general  debts  of  the  estate,  but  over  the  expenses  of 
administration,  funeral  expenses  and  expenses  of  last  illness.®^ 

To  divest  the  lien  of  a  mortgage,  the  mortgagee  must  be  made 
a  party  to  the  proceedings  by  the  administrator  for  the  sale  of  the 
land,  and  the  court  must  order  the  land  sold  to  discharge  the  lien. 
Real  estate  incumbered  by  liens  may  be  sold  by  an  administrator 
in  one  of  two  ways :  subject  to  the  liens,  or  to  discharge  the  liens. 
In  the  latter  case  the  purchaser  will  take  and  hold  the  lands  freed 
from  the  liens. ^- 

^Kirkpatrick  v.  Caldwell,  32  Ind.  "Beach  v.  Bell,  139  Ind.  167,  38 
299;  Perry  v.  Borton,  25  Ind.  274.  X.  E.  819;  Crum  v.  Meeks,  128  Ind. 
One  holding  a  mortgage  executed  by  360,  27  N.  E.  722;  Massey  v.  Jerauld, 
a  decedent  upon  real  estate,  which  Ind.  270;  Martin  v.  Beasley,  49  Ind. 
an  administrator  is  ordered  to  sell  280.  A  judgment  obtained  against  a 
discharged  of  liens,  is  entitled,  un-  devisee  of  real  estate,  which  is  after- 
der  Burns'  R.  S.  1908,  §  2958,  to  ward  sold  by  the  administrator  with 
have  the  entire  proceeds  of  the  sale  the  will  annexed  in  pursuance  of  the 
applied  to  the  payment  of  his  mort-  terms  of  the  will,  the  transcript  hav- 
gage  debt,  if  so  much  is  necessary,  ing  been  properly  filed,  becomes  a 
to  the  exclusion  of  claims  for  costs  lien  on  the  land,  and  follows  the  pro- 
of administration,  funeral  expenses  ceeds  of  the  sale  of  such  land  into 
and  expenses  of  last  sickness.  Ryker  the  administrator's  hands,  binding  it 
V.  Vawter,  117  Ind.  425,  20  X.  E.  294;  to  the  same  extent  as  it  bound  the 
Mayer  v.  Myers,  129  Ind.  366,  27  N.  land.  Koons  v.  Mellett,  121  Ind.  585, 
E.  740.  23  N.  E.  95,  7  L.  R.  A.  231n.     Such 

"Ryker    v.    Vawter,    117    Ind.    425,  lien,  however,  is  a  general  lien,  and 

20  N.  E.  294.  is  subject  to  all  the  equities  existing 


340 


INDIANA    PROBATE    LAW.  §    227 


§  227.  Mortgagee's  right  to  file  claim. — Prior  to  the  revi- 
sion of  1 88 1,  claims  against  a  decedent's  estate  secured  by  mort- 
gage, and  judgments  against  the  decedent,  were  not  required  to 
be  filed  against  the  estate;  and  when  amortgagee  went  outside  of 
the  mortgaged  property  to  obtain  payment  of  his  claim,  such 
claim  had  no  preference  over  the  general  debts  of  the  estate. 
And  should  he  fail  to  make  the  full  amount  of  the  debt  out  of  the 
mortgaged  property,  he  was  permitted  to  file  his  claim  against  the 
estate  for  the  balance  due,  which  claim,  if  allowed,  was  paid  in 
full  or  pro  rata,  as  were  other  general  debts  of  the  estate.^^  The 
statute  now  requires  that  such  claims  shall  be  filed  against  the 
estate  as  are  other  claims,  and  if  found  correct  their  payment  is 
provided  for  in  preference  to  the  general  debts  of  the  estate. 

As  the  personal  property  of  the  estate  is  the  primary  fund  for 
the  payment  of  all  the  debts  of  the  decedent,  the  holder  of  a  note 
secured  by  a  mortgage  upon  the  decedent's  real  estate  may  file  his 
note  as  a  claim  against  the  estate,  and  as  such  claimant  is  en- 
titled to  a  pro  rata  dividend  out  of  the  assets  of  the  estate,  and 
the  fact  that  he  received  such  pro  rata  share  and  had  notice  of 
the  sale  of  the  real  estate  upon  which  his  mortgage  was  a  lien, 
does  not  prevent  him  foreclosing  his  mortgage  for  any  balance 
due  him  thereon,  unless  the  land  had  been  sold  free  of  liens. ^* 
But  if  a  lien-holder  first  pursues  his  remedy  against  the  land  and 
fails  to  make  all  the  amount  due  him,  the  balance  of  his  claim 
has  no  preference  over  those  of  the  general  creditors.  It  is  no 
lien  upon  the  general  assets  of  the  estate.^^ 

Where  either  real  or  personal  property  upon  which  there  is  an 
outstanding  mortgage  is  converted  into  money,  the  rights  of  the 
mortgagee  continue  unaltered,  and  the  court  should  direct  the 

in  favor  of  the  estate  represented  by  *^  Clarke  v.  Henshaw,  30  Ind.  144. 

the    administrator,    and    confers    on  -°  Kimmell    v.    Burns,   84   Ind.   370 ; 

the    judgment    no    greater    rights    as  Sparrow    v.    Kelso,   92  .Ind.   514;    La 

against    the    estate    than    those    pos-  Plante  v.  Convery,  98  Ind.  499;  Lord 

sessed  by  the  legatee.  v.    Wilcox,    99    Ind.    491;    Ryker    v. 

*'La    Plante    v.    Convery,    98    Ind.  Vawter,  117  Ind.  425,  20  N.  E.  294. 
499. 


§    228  DISPOSITION    OF    REAL    PROPERTY.  34I 

application  of  the  money  according  to  the  rights  of  the  parties  as 
they  existed  previous  to  the  alteration  of  the  estate.^® 

The  heirs  or  devisees  do  not  take  the  property  free  from  liens 
where  the  lien-holder  fails  to  file  his  claim  against  the  estate. 
Such  land  remains  subject  to  the  lien,  even  after  final  settlement 
of  the  estate." 

In  an  action  against  the  executor  or  administrator  and  the 
heirs  of  a  decedent  to  foreclose  a  mortgage  upon  the  lands  of  the 
decedent  it  is  not  necessary  for  the  complaint  to  show  that  a 
claim  for  the  mortgage  debt  had  been  filed  against  the  estate.  If 
such  claim  had  not  been  filed  that  fact  is  matter  of  defense. 
For  it  may  be  assumed  that  the  court  would  not  have  jurisdiction 
to  foreclose  a  mortgage  or  enforce  the  lien  of  one  before  the 
final  settlement  of  the  estate,  even  though  more  than  one  year 
had  elapsed  after  the  death  of  the  decedent,  until  a  claim  therefor 
had  been  filed  against  the  estate.®^ 

§  228.  Proceedings  to  enforce  lien  suspended. — No  pro- 
ceedings shall  be  instituted  before  the  end  of  one  year  from  the 
death  of  the  decedent,  to  enforce  the  lien  of  any  judgment  against 
the  decedent  in  his  lifetime,  upon  real  estate  or  any  decree  spe- 
cially directing  the  sale  of  such  real  estate,  to  discharge  any  lien 
or  liability  created  or  suffered  by  the  decedent.  Nor  shall  any 
suit  be  brought  before  that  time  against  the  heirs  or  devisees  of 
the  deceased  to  foreclose  any  mortgage  or  other  lien  thereon,  for 

"^Gimbel  v.  Stolte,  59  Ind.  446;  As-  is  little  room  for  doubt  that  it  must 

tor  V.  Miller,  2  Paige   (N.  Y.)  68.  be  filed  against  the  estate  before  set- 

*'  Beach  v.  Bell,  139  Ind.  167,  38  N.  tlement  or  be  barred,  but  we  find  no 

E.  819.     In  this  case,  the  court  says :  good   purpose   nor  expressed  or  im- 

"Under  all  the  provisions  cited,  there  plied  intention,  in  any  of  the  statu- 

is    every   reason    for    holding   that    a  tory  provisions  cited,  to  deprive  one 

mortgage-lien    must    be    filed    within  of  his  mortgage,  judgment,  or  other 

the  year  of  administration,  or  that  a  lien  on  specific  real  estate,  where  he 

judgment-lien  shall  be  so  filed  or  be  does  not  care  to  pursue  the  personal 

barred,   as   there  is   for  holding  that  assets    of    the   estate   and   participate 

the  lien  in  this  case  should  have  been  with  general  creditors." 

so  filed.  If  the  claim  which  is  secured  "'Noerr  v.   Schmidt,   151   Ind.   579, 

by  the   lien   is   to   participate   in   the  51  N.  E.  332. 
personal   assets   of   the   estate,   there 


342  INDIANA    PROBATE   LAW.  §    229 

the  payment  of  which  his  personal  estate  shall  be  liable ;  and  in 
case  of  suit  to  foreclose  any  mortgage  or  other  lien  thereon,  the 
executor  or  administrator  shall  be  made  a  party  defendant  there- 
to; and  if  the  executor  or  administrator  shall  be  diligently  prose- 
cuting his  proceedings  to  sell  the  real  estate  of  the  deceased  for 
the  purpose  of  making  assets  to  discharge  such  liens,  further  pro- 
ceedings for  the  sale  thereof,  bv  the  holders  of  liens  thereon,  shall 
be  stayed  upon  the  application  of  the  executor  or  administrator. 
This  section  shall  not  apply  to  cases  where,  before  the  end  of  the 
year,  the  real  estate  shall  have  been  sold  by  the  executor  or  ad- 
ministrator subject  to  the  liens  thereon,  nor  to  mortgages  and 
judgments  in  favor  of  the  state. ^® 

In  case  of  the  death  of  any  judgment  debtor,  the  heirs,  de- 
visees, or  legatees  of  such  debtor,  or  the  tenant  of  real  property 
owned  by  him  and  affected  by  the  judgment,  and  the  personal 
representatives  of  the  decedent,  may,  after  the  expiration  of  one 
year  from  the  time  of  granting  letters  testamentary  or  of  admin- 
istration upon  the  estate  of  the  decedent,  be  summoned  to  show 
cause  why  the  judgment  should  not  be  enforced  against  the  estate 
of  the  judgment  debtor  in  their  hands  respectively.^" 

§  229.  Same — Statute  construed. — Before  this  section  of 
the  statute  was  amended  by  the  act  of  1883,  "no  proceeding  could 
be  instituted  before  the  end  of  one  year  from  the  issuing  of  let- 
ters testamentary  or  of  administration,"  but  as  the  mortgagee 
might  be  delayed  and  kept  from  his  remedy  by  a  neglect  to  have 
an  administrator  appointed,  the  statute  was  so  amended  as  to 
date  the  year  from  the  date  of  the  death  of  the  decedent.  It 
seems  to  be  the  policy  of  the  law  that  heirs  shall  not  be  compelled 
to  litigate  about  the  debts  of  their  ancestor  until  after  the  expira- 
tion of  a  year  from  his  death.  The  prohibition  in  this  statute 
relative  to  the  foreclosure  of  mortgages  applies  only  to  such 
mortgages,  for  the  payment  of  which  the  personal  estate  of  the 
decedent  will  be  liable,  and  the  executor  or  administrator  is  a 
necessary  party  to  the  foreclosure  of  such  mortgage  because  he  is 
the  representative  of  the  personal  estate.     When  the  action  is 

'"Burns'  R.  S.  1908,  §  2847.  ""Burns'  R.  S.  1908,  §  651. 


§    230  DISPOSITION    OF    REAL    PROPERTY.  343 

merely  to  foreclose  a  mortgage,  or  other  lien,  in  which  no  judg- 
ment against  the  personal  estate  is  sought,  or  can  be  rendered, 
and  mortgages  and  judgments  in  favor  of  the  state,  the  prohibi- 
tion of  the  statute  does  not  apply,  and  such  actions  may  be 
brought  at  any  time,  and  the  heirs  and  devisees  of  a  decedent  are 
proper  and  necessary  parties  to  such  an  action;  but  his  executor 
or  administrator,  while  not,  perhaps,  necessary  parties,  should 
also  be  joined  as  defendants.  As  a  rule  the  heir  of  a  deceased 
mortgagor,  and  not  his  personal  representative,  is  the  proper 
party  defendant  in  an  action  to  foreclose  such  mortgage,  but  the 
statute  now  requires  that  both  be  made  parties  defendant.  In 
such  foreclosure  suit  the  heirs  are  necessary  parties  because  the 
equity  of  redemption  descends  to  them,  and  the  executor  or  ad- 
ministrator is  properly  made  a  party  because  he  may  have  paid 
the  mortgage,  or  may  have  personal  property  with  which  to  pay 
it.  Where  the  complaint  for  the  foreclosure  of  a  mortgage,  or 
other  lien  against  a  decedent's  real  estate,  shows  that  such  mort- 
gage, or  other  lien,  is  one  for  the  payment  of  which  the  personal 
estate  of  such  decedent  will  be  liable,  and  also  shows  that  one 
year  has  not  elapsed  since  the  death  of  the  decedent,  there  is  no 
cause  of  action.  This  statute  declares  that  such  suits  shall  not 
exist,  and  a  demurrer  to  such  complaint  for  the  want  of  sufficient 
facts  should  be  sustained.^^ 

§  230.  Bond  to  secure  payment  of  lien  after  sale. — An  ex- 
ecutor or  administrator,  in  selling  real  estate  subject  to  liens, 
should  take  a  bond  from  the  purchaser  of  such  real  estate  to 
secure  the  payment  of  the  liens.     And  one  who  purchases  real 

*W   complaint   to   enforce   a  mort-  the    debts    of    their    ancestors,    until 

gage  or   lien  against  the  lands  of   a  after  the  expiration  of  a  year  from 

decedent    must    show    that    the    right  the  issuing  of  letters  testamentary  or 

of  foreclosure  exists  under  the  pro-  of     administration     and     of     notice 

visions  of  this   section.     Lovering  v.  thereof. 

King.  97  Ind.  130.  Home  &c.  Bank  v.  John    v.    Hunt,    1    Blackf.     (Ind.) 

Peoples   &c.   Bank,  —  Ind.   App.  —  324,   12  Am.   Dec.  245;   Slaughter  v. 

96  X.  E.  710.     Taking  these  two  sec-  Foust,    4    Blackf.    (Ind.)    379;    New- 

tions   of  the   statute,   it  seems  to   be  kirk  v.   Burson,  21   Ind.   129;   Lover- 

the  policy  of  the  law  that  heirs  shall  ing  v.  King,  97  Ind.  130. 
not    be    compelled    to    litigate    about 


344  INDIANA    PROBATE    LAW.  §    23 1 

estate  at  an  executor's  or  administrator's  sale,  subject  to  liens, 
the  amount  of  which  is  deducted  from  the  purchase  price  of  the 
land,  assumes  the  payment  of  such  liens,  whether  it  is  so  stated 
in  his  deed  of  conveyance  for  the  land,  or  whether  a  bond  is 
taken  from  him  therefor  or  not.  Such  assumption  of  payment  of 
liens  need  not  be  in  writing  to  bind  a  grantee ;  and  where  a  con- 
veyance is  made  subject  to  liens,  the  grantee  is  bound  for  the 
payment  of  such  incumbrances.  His  agreement  to  pay  the  liens, 
though  not  in  writing,  is  enforcible.  The  duty  of  taking  a  bond 
from  the  purchaser,  imposed  by  this  statute  upon  an  executor  or 
administrator,  is  an  imperative  one ;  and  for  a  breach  of  this  duty 
he  is  amenable  to  any  one  who  has  an  interest  in  the  estate.  For 
his  own  protection  an  executor  or  administrator  should  require  a 
bond.  In  an  action  by  one  interested  in  an  estate,  against  the 
executor  or  administrator  for  a  failure  to  take  a  bond  of  the 
purchaser,  it  must  appear  that  the  party  complaining  has  suf- 
fered damage  by  such  failure.  The  failure  to  take  such  bond 
does  not  divest  the  liens  or  affect  their  validity.®^ 

§  231.  As  to  mortgage  by  an  heir. — Where  an  heir  exe- 
cutes a  mortgage  upon  real  estate  inherited  by  him,  and  such  real 
estate  is  afterwards  sold  by  the  administrator  of  the  ancestor  for 
the  payment  of  debts,  the  mortgagee  of  such  heir  is  entitled  to 
the  excess,  if  any,  arising  from  the  sale  of  such  heir's  part,  and 
may,  by  foreclosure  before  the  estate  is  settled,  obtain  an  order 
of  court  against  the  administrator  requiring  him,  after  final  set- 
tlement of  the  estate,  to  pay  such  excess  upon  the  mortgage,  and 
the  administrator  cannot  set  off  against  this  excess  a  sum  the 

"=  Sparrow    v.    Kelso,   92    Ind.    514;  charge  the  liens  in  the  order  of  their 

State,  ex  rel,  v.  Kelso,  94  Ind.  587;  priority,    and   thereby    free    the    land 

Massey  v.  Jerauld,  101  Ind.  270.     In  from  all  encumbrances;  but  the  pur- 

the    last    case    cited,    the   court    says,  chaser  bought  it  subject  to  whatever 

"The  land  was  sold  for  the  payment  liens    were    then    upon    it.     The    fact 

of  the  debts  generally,  subject  to  the  that  the  administrator  took  no  bond 

liens    named.      The    deed    is    nothing  from   the    purchaser   to    pay    off    the 

more  than  a  quitclaim  deed,  and  the  liens  cannot  divest  the  liens  or  affect 

land  remained  subject  to  all  the  then  their  validity." 
existing  liens.    It  was  not  sold  to  dis- 


§    231  DISPOSITION    OF    REAL    PROPERTY.  345 

mortgagor  may  owe  him  or  the  estate.    The  mortgagee  has  a  hen 
upon  such  money  superior  to  any  claim  of  the  administrator.'*^ 

While  this  position  seems  to  be  in  harmony  with  the  weight  of 
authority,^*  yet  our  Supreme  Court,  by  a  majority  opinion,  has 
modified  and  in  practical  effect  overruled  the  above  doctrine.  In 
one  case  the  court  says :  "It  frequently  happens  that  the  assets 
of  an  estate  consist  largely  of  debts  due  from  the  heirs  to  the 
ancestor.  If  it  were  possible  for  an  heir,  immediately  upon  the 
death  of  his  ancestor,  to  convey  or  encumber  his  interest  in  the 
real  estate,  so  that  after  paying  the  debts  of  the  ancestor  his 
grantee  or  mortgagee  might  participate  in  the  surplus  equally 
w^th  other  heirs  who  had  received  or  who  owed  the  ancestor 
nothing,  the  most  manifest  injustice  and  inequality  would  re- 
sult." And  again,  "when  the  land  is  converted  into  money  by 
operation  of  law,  it  becomes  money  assets  in  the  hands  of  the 
administrator,  and  that  is  subject  to  all  the  incidents  of  other  as- 
sets, regardless  of  the  source  from  which  they  arise.  For  certain 
purposes  the  administration  and  distribution  money  thus  acquired 
may  be  located  as  having  the  qualities  and  as  the  representative 
of  the  real  estate,  but  it  is,  nevertheless,  money  which  has  come 
into  the  hands  of  the  administrator  by  operation  of  law  in  the 
course  of  administering  the  estate.  Any  procedure  which  the 
heir  or  his  grantee  or  assignee  may  institute  to  get  it  out  of  the 
administrator's  hands  brings  into  operation  and  makes  available 
to  the  latter  any  right  of  set-ofT,  or  to  retain  it  as  against  any 
legitimate  debt  owing  by  the  heir  to  the  estate  through  whom  he 
claims  as  assignee.  The  claim  of  the  assignee  is  not  a  claim  to  an 
interest  in  land,  but  it  is  a  claim  to  an  interest  in  the  assets  of  the 
estate ;  whatever  interest  he  has  is  an  interest  in  the  estate,  and  he 
takes  that  interest  precisely  as  his  assignor  held  it."^"* 

"Ball  V.  Green,  90  Ind.  75;  Camp-  (Tenn.)    245;    Hancock   v.   Hubbard, 

bell  V.  Martin,  87  Ind.  577.  19    Pick.     (Mass.)     167;    Towles    v. 

^La  Foy  v.  La  Foy,  43  N.  J.  Eq.  Towles,  1  Head  (Tenn.)  600;  Strong 

206,    10    Atl.    266,    3    Am.    St.    302;  v.   Bass,  35   Pa.   St.  333,  2  Woerner 

Smith  V.   Kearney,  2  Barb.  Ch.    (N.  Law  Admr.,  §  564. 

Y.)   533;  Sartor  v.  Beatv^  25  S.  Car.  ''^  Fiscus    v.    Moore,    121    Ind.    547, 

293 ;    Procter   v.    Newhall,    17    Mass.  23  N.  E.  362,  7  L.  R.  A.  235 ;  Koons 

81 ; '    Mann     v.     Mann,     12     Heisk.  v.  Mellett,  121  Ind.  585,  23  N.  E.  95, 


346  INDIANA    PROBATE    LAW.  §    232 

§  232.  The  sale,  how  made,  etc. — The  order  of  sale  must 
precede  the  sale,  and  should  specify  how  and  upon  what  terms 
the  sale  shall  be  made;  and  the  executor  or  administrator,  in 
making  the  sale,  should  follow  the  order  and  the  provisions  of  the 
statute  authorizing  such  sale.'"'  He  has  no  power  to  vary  the 
order  of  sale  as  to  time,  terms  or  conditions.  If  the  sale  is  or- 
dered at  public  auction  with  notice  it  cannot  be  made  at  private 
vendue  without  notice,  and  if  the  order  directs  a  sale  for  cash  the 
administrator  cannot  sell  on  credit,  nor  can  he  sell  more  land 
than  is  specified  in  the  order. '^^ 

The  statute  provides  that  the  court  ordering  the  sale  shall 
specify  the  terms  of  sale,  but  no  credits  shall  be  directed  to  be 
given  for  a  longer  period  than  eighteen  months,  except  that  when 
the  appraisement  of  the  real  estate  is  over  five  thousand  dollars, 
a  credit  may  be  given  for  a  period  of  not  more  than  three  years. 
If  it  appear  to  the  court  that  a  private  sale  of  the  real  estate 
would  be  advantageous  to  the  estate  of  the  decedent  the  court 
may  so  order,  and  shall  in  such  case  prescribe  in  the  order  the 
notice  to  be  given  of  the  sale:  Provided,  That  if  the  appraised 
value  of  the  real  estate  ordered  to  be  sold  shall  not  exceed  one 
thousand  dollars,  the  court  may  order  such  sale  without  giving 
notice  thereof.^^  But  every  such  sale  of  real  estate  shall  be  at 
public  auction  unless  otherwise  provided  in  the  order  of  sale. 
Lands  shall  not  be  sold  at  public  vendue  for  less  than  two-thirds 
of  their  appraised  value,  unless  ordered  to  be  sold  subject  to 
liens;  in  which  case,  they  shall  not  be  sold  for  less  than  two- 
thirds  of  the  appraised  value  after  deducting  the  liens.  Sales  of 
land  at  private  vendue  shall  not  be  for  less  than  their  appraised 
value,  except  in  cases  of  sales  subject  to  liens;  when  the  sale  shall 

7  L.  R.  A.  231n;  Nelson  v.  Murfee,  ''Richards    v.    Adamson,    43    Iowa 

69  Ala.  598.  248;   Fambro  v.   Gantt,   12  Ala.  298; 

^  Clark  V.   Hillis,   134  Ind.  421,  34  Cruikshank  v.  Luttrell,  67  Ala.  318; 

N.    E.    13;    Stuart 'v.   Allen,    16   Cal.  Wakefield  v.   Campbell,  20   Me.   393, 

473,    76    Am.    Dec.    551;    Herrick    v.  Z7  Am.  Dec.  60n;  Wells  v.  Mills,  22 

Grow,    5    Wend.    (N.   Y.)    579;    Fil-  Tex.  302. 

more  v.  Reithman,  6  Colo.  120.  ''  Burns'  R.  S.  1908,  §  2868. 


§    232  DISPOSITION    OF    REAL    PROPERTY,  347 

not  be  for  less  than  the  appraised  value  after  deducting  the 
amount  of  the  liens.'"' 

A  violation  of  the  order  of  sale  or  of  the  provisions  of  the 
statute  in  any  material  respect  will  render  the  sale,  if  not  abso- 
lutely void,  at  least  voidable,  and  the  executor  or  administrator 
guilty  of  such  violation  would  be  liable  on  his  bond  to  any  person 
injured  thereby/ 

The  sale  must  be  made  personally  by  the  executor  or  adminis- 
trator. There  is  no  authority  given  the  court  to  appoint  a  com- 
missioner to  make  such  sale,  and  if  one  is  appointed  a  sale  made 
by  him  is  void,  and  the  appointment  being  without  authority  of 
law,  a  bond  given  by  such  commissioner  is  void,  and  is  not  en- 
forcible  even  as  a  common  law  obligation." 

The  executor  or  administrator  has  no  discretion  under  the  or- 
der of  sale  except  to  secure  the  highest  possible  price.  It  is  his 
duty  to  follow  the  provisions  of  the  order  of  sale  strictly.  He 
has  no  power  to  change  or  vary  the  terms  of  the  order  under 
which  he  acts,  and  his  statements  and  representations  made  at  the 
time  of  the  sale  do  not  bind  the  estate  only  as  to  such  matters  as 
are  prescribed  in  the  order  of  sale.^ 

'=  Burns'  R.  S.  1908,  §  2871.  sold.      Duncan    v.    Gainey,    108    Ind 

'Dresel  v.  Jordan,  104  Mass.  407;  579,  9  N.  E.  470.  Lands  which  re- 
Heath  V.  Layne,  62  Tex.  686;  James  vert  to  the  donor,  are  chargeable  with 
V.  Faulk,  54  Ala.  184;  Logan  v.  Gig-  the  debts  of  the  donee  and  may  be 
ley,  9  Ga.  114.  sold  by  his  administrator.     Duncan  v. 

If   an   administrator    receives   any-  Gaine}',  108  Ind.  579,  9  N.  E.  470.    Ir- 

thing  but  money  in  payment  for  land  regularities   in   a   sale  will  not  avoid 

sold,   and   does   not   account    for   the  the  same  where  the   purchase-money 

purchase-money,    the    purchaser    will  is  paid  and  properly  applied.  Dequin- 

be  liable  for  the  payment  of  the  pur-  dre  v.  Williams,  31  Ind.  444. 

chase-price    in    money.      Chandler    v.  "  State     v.     Younts,    89     Ind.     313 

Schoonover,  14  Ind.  324.  Whisnand    v.     Small,    65    Ind.     120 

Failure  to  comply  strictly  with  the  State    v.    McLaughlin,    77    Ind.    335 

statute  will   not  render  the  proceed-  Caffrey  v.   Dudgeon,  38  Ind.  512,   10 

ings     subject     to     collateral     attack.  Am.    Rep.    126;    Ham    v.    Greve,    41 

Spaulding  v.  Baldwin,  31  Ind.  376.  Ind.  531. 

If  the  administrator  without  prop-  ^  Dunlap   v.   Robinson,   12  Ohio   St. 

er   authority   sells  the   real    estate  of  530 ;    Randolph's    Appeal,    5    Pa.    St. 

the    decedent    the    purchaser    obtains  242;   Cruikshank  v.   Luttrell,  67  Ala. 

no  title  and  the  lands  may  be  again  318;  Selb  v.  Montague,  102  111.  446. 


348  INDIANA  PROBATE  LAW.  §  232 

The  fact  that  the  sale  must  be  made  by  the  executor  or  admin- 
istrator personally  does  not  imply  that  actual  crying  of  the  sale 
and  the  selling  must  be  done  by  him  individually.  He  may  act 
as  his  own  auctioneer/  or  such  executor  or  administrator  has  the 
right  to  employ  an  auctioneer  to  cry  a  sale  for  him,  and  such 
auctioneer  has  the  right,  at  such  sale,  to  bid  off  property  for  him- 
self. But  if  the  circumstances  should  be  such  that  he  ought  to  be 
held  as  trustee,  his  purchase  may,  in  a  direct  proceeding,  be  set 
aside  and  the  property  re-offered  for  sale,  but  this  must  be  done 
before  such  property  has  passed  into  the  hands  of  a  bona  fide 
purchaser  without  notice.  Such  sale  is  impervious  to  a  collateral 
attack.^ 

If  an  auctioneer  is  employed  he  is  the  mere  mouthpiece  of  the 
executor  or  administrator  making  the  sale,  and  all  his  acts  and 
announcements  are  considered  as  those  of  his  employer.^ 

If  the  purchaser  should  fail  to  comply  with  the  terms  of  the 
sale  the  executor  or  administrator  may  re-sell  the  land,  and  if, 
upon  such  second  sale,  it  fails  to  bring  as  much  as  at  the  first 
sale,  the  first  purchaser  will  be  liable  for  the  difference.'' 

Unless  the  order  is  to  sell  free  from  liens  the  purchaser  will 
take  the  land  subject  to  all  liens,  mortgages,  or  titles  superior  to 

'Lafiton    V.    Doiron,    12    La.    Ann.  69  Am.   Dec.  362n;  Wylly  v.   Gazan, 

164.  69    Ga.    506.      Corn    standing   in    the 

'Hawkins   v.   Ragan,   20   Ind.   193;  field  was  sold  at  administrator's  sale. 

Rice   V.    Cleghorn,  21   Ind.  80;   Kel-  It  was  to  be  gathered  by  the  admin- 

logg  V.  Wilson,  89  111.  357.  istrator    within    a    reasonable    time. 

*  Hawkins   v.   Ragan,  20   Ind.    193 ;  When  it  was  gathered  and  stored  the 

Vandever  v.  Baker,   13   Pa.    St.    121 ;  purchaser  refused  to  receive  it.     The 

Hicks  V.  Willis,  41   N.  J.  Eq.  515,  7  corn,   by   order   of  court,  was   after- 

Atl.  507.     False  representations  made  wards    sold   by   the   administrator   at 

by  an   administrator   on   the   sale   of  private  sale  for  a  less  sum  than  the 

lands  as  to  incumbrances  thereon  will  first   purchaser  bid    for   it   and   sued 

not  be  a  defense  to  an  action  for  the  such    purchaser    for    the    difference, 

purchase-money.     Riley  v.  Kepler,  94  Held,  that  on  the  trial  the  proceed- 

Ind.   308;    West   v.   Wright,   98   Ind.  ings  relative  to  the  second  sale  were 

335.  admissible  in  evidence;  that  the  con- 

^  Meek    v.     Spencer,    8    Ind.     118;  tract  with  the  first  purchaser  was  not 

Wanzer    v.    Eldridge,    33    N.    J.    Eq.  thereby    abandoned.      Meek   v.    Spen- 

511;  Mount  v.  Brown,  33  Miss.  566,  cer,  8  Ind.  118. 


§    233  DISPOSITION    OF    REAL    PROPERTY.  349 

that  of  the  deceased  debtor.  Such  purchaser  can  acquire  only  the 
title  and  interest  the  decedent  had  in  the  land  at  his  death.^ 

So  far  as  taxes  against  the  real  estate  are  concerned,  the  pur- 
chaser takes  the  land  subject  to  those  which  have  accrued  since 
the  death  of  the  owner,  as  the  estate  can  be  only  charged  with 
those  which  accrued  prior  to  his  death.'' 

In  sales  by  executors  or  administrators  there  is  no  warranty, 
either  express  or  implied,  and  such  officer  is  not,  in  general, 
bound  to  make  known  defects  of  title  within  his  own  knowledge, 
for  the  law  imposes  upon  the  purchaser  the  duty  of  exercising 
his  own  judgment  in  all  reasonable  ways  as  to  that  which  he  is 
buying.  ^'^  The  purchaser  is  bound,  however,  only  by  what  the 
records  show.  He  is  not  affected  by  secret  defects.  For  this 
reason  his  title  would  have  priority  over  an  unrecorded  deed  or 
mortgage  made  by  the  decedent,  nor  would  it  be  affected  by  secret 
trust  of  which  the  purchaser  had  no  notice. ^^ 

§  233.  Sale  may  be  on  credit. — Upon  the  sale  an  executor 
or  administrator  is  required  to  take  of  the  purchaser  notes  with 
personal  security,  and  upon  the  confirmation  of  the  sale  by  the 
court  and  the  execution  and  delivery  of  a  deed  to  such  purchaser, 
a  mortgage  upon  the  real  estate  must  also  be  taken  from  such 
purchaser  as  an  additional  security,  but  this  additional  security 
does  not  change  the  character  of  the  notes  given,  nor  lessen  the 
liability  of  the  sureties  thereon. 

Upon  such  sale  being  made,  such  executor  or  administrator 
shall  take  from  the  purchaser  promissory  notes  for  the  purchase- 
money,  with  sufficient  surety,  waiving  recourse  to  the  valuation 
or  appraisement  laws  of  this  state,  and  shall  also  execute  to  such 
purchaser  a  certificate  of  the  sale  of  such  real  estate.  Such  notes 
shall  be  drawn  according  to  the  terms  of  the  sale  prescribed  by 

'  Woerner  Am.  Law  Admin.,  §  482.        "  Banks    v.    Ammon,    27    Pa.     St. 

'Henderson  v.    Whitinger,   56   Ind.  172;    Love    v.    Berry,    22    Tex.    371; 

13 L  Barto  v.  Tomkins  County  Nat.  Bank, 

'nValton  V.   Reager,  20  Tex.    103;  15    Hun     (N.    Y.)     11;    Emerson    v. 

Jones  V.  Warnock,  67  Ga.  484;   Til-  Ross.  17  Fla.  122. 
ley  V.  Bridges,   105  111.  ZZ6;  Riley  v. 
Kepler,  94  Ind.  308. 


350  INDIANA  PROBATE  LAW.  §  233 

the  court  and  shall  bear  six  per  cent,  interest  from  date.  If  the 
real  estate  be  sold  subject  to  liens  the  purchaser  shall  execute 
bond  as  hereinbefore  provided.^" 

In  receiving  payment  on  the  sale  notes,  given  pursuant  to  this 
statute,  an  executor  or  administrator  is  not  authorized  to  receive 
anything  but  money  in  payment  therefor.  He  has  no  power  to 
apply  the  proceeds  of  such  sale  in  discharge  of  his  own  individual 
debts,  because  the  exercise  of  such  power  would  be  inconsistent 
with  his  duties  and  would  be  against  public  policy.  So  where  the 
purchaser  of  land  at  a  sale  of  a  decedent's  real  estate  by  the  ad- 
ministrator credits  the  purchase-money  of  such  land  upon  a  note 
due  him  from  the  administrator  personally,  it  is  no  payment,  and 
the  sale  may  be  set  aside  or  the  purchase-money  recovered." 

A  creditor  of  the  estate,  who  becomes  a  purchaser  at  a  sale 
made  by  an  executor  or  administrator,  cannot  retain  from  the 
purchase-money  sufficient  to  satisfy  the  claim  he  holds  against 
the  estate.'*  But  if  the  purchaser  should  be  a  holder  of  a  first 
mortgage  lien  upon  the  land  bought  by  him,  and  the  land  had 
been  ordered  sold,  discharged  from  the  lien,  he  would  perhaps  be 
entitled  to  retain  from  the  purchase-money  sufficient  to  satisfy 
his  mortgage.'^ 

If  the  order  has  been  made  to  sell  on  credit  the  executor  or 
administrator  would,  nevertheless,  be  allowed  to  accept  all  cash 
upon  the  sale.'*' 

Before  making  a  deed  it  is  the  duty  of  the  executor  or  admin- 

'=  Burns'    R.    S.    1908,    §  2873.      If  524;    Bevis    v.    Heflin,   63    Ind.    129; 

anything    but    money    is    received    in  Walker  v.   Hill,  111   Ind.  223,   12   N. 

payment,   and  the  purchase-money  is  E.  387;  Bisco  v.  Moore,  12  Ark.  11; 

not  accounted  for,  the  purchaser  will  Alvord  v.   Marsh,   12   Allen    (Mass.) 

be  required  to  pay  the  purchase-price  603. 

in   money.     Chandler  v.    Schoonover,  "  Rindge  v.  Oliphint,  62  Tex.  682 ; 

14  Ind.  324.     Irregularities  in  a  sale  Brandon  v.  Allison,  66  N.  Car.  532; 

will   not    avoid   the    same   where   the  Eldredge  v.  Bell,  64  Iowa  125,  19  N. 

purchase-money    is    paid    and    prop-  W.  879. 

erly  applied.     Dequindre  v.  Williams,  "^  Succession     of     Triche,     29     La. 

31  Ind.  444.  Ann.  384. 

"Chandler  v.    Schoonover,    14  Ind.  '"  Gvvynn    v.    Dorsey,    4    Gill    &    J. 

324;    Hancock    v.    Morgan,    34    Ind.  (Md.)  453. 


§    234  DISPOSITION    OF    REAL    PROPERTY.  35 1 

istrator  to  collect  the  purchase-money  or  such  portion  of  it  as  the 
terms  of  the  sale  require  to  be  paid. 

In  a  suit  upon  a  note  given  for  the  purchase-price  of  property 
bought  at  an  executor's  or  administrator's  sale,  the  purchaser  of 
such  property  cannot  set  off  a  debt  due  him  from  the  decedent  in 
his  lifetime.  The  principle  of  mutuality  in  such  cases  requires 
that  the  debts  should  not  only  be  due  to  and  from  the  same  per- 
sons, but  in  the  same  capacity.  The  note  was  not  executed  to  the 
decedent  in  his  lifetime,  but  to  his  administrator,  for  property 
purchased  of  the  latter  after  the  death  of  his  decedent ;  while  the 
set-off  is  for  a  debt  of  the  decedent  in  his  lifetime.  To  allow  a 
set-off  in  such  cases  would  disturb  the  due  course  of  administra- 
tion and  distribution  of  estates." 

§  234.  Notice  of  the  sale  to  be  given. — In  case  of  sale  of 
real  estate  at  public  auction,  the  executor  or  administrator  shall 
give  four  weeks'  notice  of  the  time,  place,  and  terms  of  sale,  by 
publication  in  some  public  newspaper,  if  any,  published  in  the 
county  in  which  the  real  estate  is  situate,  and  by  posting  up  no- 
tices thereof  in  at  least  five  public  places  in  such  county,  three  of 
which  shall  be  in  each  township  in  which  real  estate  to  be  sold 
may  be  situate.  If  the  real  estate  or  any  part  thereof  shall  be 
ordered  to  be  sold  subject  to  any  lien,  such  fact  and  the  particu- 
lars of  the  lien  shall  be  stated  in  the  notice.^^ 

The  rule  of  law  seems  to  be  that  where  notice  is  required  by 
statute,  and  the  record  of  the  proceedings  in  a  court  of  general 
jurisdiction,  while  silent  upon  the  question  as  to  whether  such 
notice  was  given  or  not,  discloses  nothing  inconsistent  with  the 
fact  of  such  notice  having  been  given,  in  the  absence  of  proof  to 
the  contraiy,  notice  will  be  presumed  to  have  been  properly 
given. ^® 

Where  the  appraised  value  of  the  real  estate  is  such  as  to  re- 
quire it  to  be  sold  at  public  auction,  notice  must  be  given,  regard- 

'■Dayhuff  v.  Dayhufif,  27  Ind.   158;  "Horner    v.    Doe,    1    Ind.    130,    48 

Harte  v.  Houchin,  50  Ind.  327 ;  Wei-  Am.  Dec.  355 ;  Doe  v.  Harvey,  3  Ind. 

born  V.  Coon,  57  Ind.  270.  104;  Gerrard  v.  Johnson,  12  Ind.  636. 

"  Burns'  R.  S.  1908,  §  2872. 


352  INDIANA  PROBATE  LAW.  §  234 

less  of  whether  the  order  directing  the  sale  requires  notice  or  not. 
To  give  notice  is  a  duty  the  statute  imposes  on  the  adminis- 
trator.'*' 

A  sale  without  notice,  when  notice  is  required,  is  perhaps  void, 
though  after  report  and  confirmation  and  the  execution  and  de- 
livery of  the  deed,  in  the  absence  of  anything  in  the  record  nega- 
tiving the  fact  of  notice,  the  sale  will  be  upheld  under  the  rule 
that  notice  will  be  presumed.-^ 

If  the  court  should  in  the  order  direct  notice  to  be  published 
in  two  newspapers,  a  publication  in  one  will  be  held  sufficient."" 
And  the  publication  must  be  continuous  in  the  same  newspaper 
for  the  entire  time  required  by  the  statute."^ 

The  affidavit  making  proof  of  the  posting  of  the  notices  re- 
quired by  the  statute  should  designate  the  places  where  such 
notices  were  posted,  and  the  report  of  the  sale  should  show  that 
such  places  were  public  places.'* 

A  copy  of  the  notice  should  be  attached  to  the  affidavit.^^ 

If  the  value  of  the  land,  according  to  the  appraisement,  does 
not  exceed  one  thousand  dollars,  the  court  in  its  discretion  may 
order  the  sale  to  be  made  without  notice.'" 

When  lands  are  ordered  sold  at  private  sale  it  is  not  necessary 
that  the  notice  of  such  sale  specify  the  time  and  place  of  the 
sale." 

A  misdescription  in  the  notice  of  the  premises  to  be  sold  will 
not  affect  the  sale  nor  release  a  bidder  from  complying  with  his 
bid  if  such  bidder  was  not  misled  thereby.'*     A  misstatement  in 

="  Lawrence's   Appeal,  49   Conn.  411;  "Hugo  v.  Miller,  50  Minn.  105,  52 

Clark  V.   Hillis,   134  Ind.   421,  34  N.  X.  W.  381;   Sowards  v.  Pritchett,  2>7 

E.  13.  111.  517. 

'' Saltonstall  v.   Riley,  28  Ala.    164,  ^=  Brown  v.  Redwyne,   16  Ga.  67. 
65  Am.  Dec.  334 ;  Clark  v.  Hillis,  134  =°  Maxwell    v.     Campbell,    45     Ind. 
Ind.   421,    34    N.    E.    13;    Gerrard   v.  360;  Rice  v.  Cleghorn,  21  Ind.  80. 
Johnson,     12    Ind.    636 ;     Schaale    v.  "'  Rice  v.  Cleghorn,  21  Ind.  80. 
Wasey,  70  Mich.  414,  38  N.  W.  317;  ^  Wylly  v.  Gazan,  69  Ga.  506;  Sue- 
Doe  V.  Harvey,  3  Ind.  104.  cession    of    Wadsworth,    2    La.    Ann. 

^  Sankey's  Appeal'  55  Pa.  St.  491.  966. 

^  Townsend     v.     Tallant,     Zo     Cal. 
45,  91  Am.  Dec.  617. 


§    235  DISPOSITION    OF    REAL    PROPERTY.  353 

the  notice  of  the  day  of  sale  or  the  naming  of  an  impossible  day 
will  render  the  sale  void.-*^ 

§  235.    Representations  by  an  administrator  or  executor. — 

The  warranties  or  representations  of  an  executor  or  adminis- 
trator made  at  a  sale  of  decedent's  real  estate  are  not  binding 
upon  the  estate.  An  executor  or  administrator  cannot,  as  such, 
commit  a  tort;  if  he  commits  a  tort,  he  commits  it  as  an  indi- 
vidual, and  is  liable  as  an  individual  and  not  in  his  official 
capacity.  Fraudulent  representations  by  an  executor  or  adminis- 
trator made  at  a  sale  of  a  decedent's  real  estate  for  the  purpose 
of  inducing  one  to  purchase,  may  not  be  pleaded  in  answer  by 
such  purchaser  to  an  action  by  the  executor  or  administrator  on 
the  notes  given  for  the  purchase-money  of  such  real  estate.  If 
false  representations  were  made  by  the  executor  or  administrator, 
it  was  his  individual  tort  for  which  he  alone  personally  can  be 
held  responsible.^'^ 

But  such  representations  as  he  may  make  which  are  in  harmony 
with  the  order  of  sale  will  be  held  binding  upon  the  estate.^^  If 
the  executor  or  administrator  employ  by-bidders  to  fraudulently 
increase  the  price  of  the  land  at  the  sale,  the  purchaser  upon  the 
proper  showing  made  will  be  relieved  of  his  bid.^- 

Such  means  taints  the  transaction  with  fraud.  It  is  said  in  one 
case:  "To  screw  up  the  price,  as  it  has  been  aptly  termed,  by 
secret  machinery,  can  be  no  less  a  fraud,  and  a  sham  bidder  can 
be  used  for  no  other  purpose."^^ 

If  not  contrary  to  the  order  of  sale  or  some  statute,  the  admin- 
istrator or  executor  may  agree  with  the  purchaser  about  some 
things,  and  if  for  the  interest  of  the  estate  in  securing  a  better 

^  Wellman   v.    Lawrence,    15   Mass.  fense  to  an  action  for  the  purchase- 

326.  money.    West  v.  Wright,  98  Ind.  335. 

'"Riley    v.     Kepler,    94    Ind.    308;  '' Dunlap  v.  Robinson,  12  Ohio  St. 

Rose  V.  Cash,  58  Ind.  278;   Hankins  530;  Giles  v.  Moore,  4  Gray  (Mass.) 

V.    Kimball,   57   Ind.  42;    Rodman   v.  600;  Selb  v.  Montague,  102  111.  446. 

Rodman,  54   Ind.   444;    Fritz   v.   Mc-  "  De    Haven's   Appeal,    106   Pa.    St. 

Gill,   31    Minn.    536,    18   N.    W.    753.  612. 

Fraudulent    representations   made   by  '^  Pennock's     Appeal,     14     Pa.     St. 

an  administrator  on  the  sale  of  land  446,  53  Am.  Dec.  561. 
as  to  incumbrances  constitute  no  de- 

23— Pro.  Law. 


354  INDIANA    PROBATE    LAW.  §    236 

price  for  the  land  courts  will  uphold  such  arrangements.  If  no 
other  provision  has  been  made  he  can  agree  to  pay  off  a  mort- 
gage against  the  land  offered  for  sale ;  so  he  may  agree  to  pay 
taxes  which  have  accrued  since  the  death  of  the  decedent ;  or  he 
may  agree  with  the  purchaser  and  permit  him  to  discharge  a  note 
given  for  the  property  purchased  by  paying  off  creditors  of  the 
estate.^* 

But  as  a  rule  sales  of  real  estate  made  by  an  executor  or  admin- 
istrator are  governed  strictly  by  the  power  under  which  they  act, 
because  they  have  no  right  to  sell  except  under  special  authority, 
and  whatever  they  do  in  excess  of  such  authority  is  either  void  or 
can  only  bind  them  personally.  The  principle  of  caveat  emptor  is 
strictly  applied. ^° 

^  236.  Purchase  by  executor  or  administrator. — If  an  ex- 
ecutor or  administrator  sell  the  lands  of  his  decedent,  as  such 
executor  or  administrator,  to  himself  as  an  individual,  either 
directly  or  indirectly  through  a  third  person,  he  cannot  hold  the 
title  thereto  against  the  heirs  of  the  deceased  if  they  take  proper 
steps  to  avoid  it.  The  question  in  such  case  is  not  one  of  fraud 
in  fact,  or  actual  fraud;  such  a  sale  is  itself  a  fraud  in  law,  or 
constructive  fraud,  which  the  law  will  not  uphold,  whatever  may 
have  been  the  motive  in  making  it.  The  principle  is  founded  in 
the  doctrine  of  trusts,  that  a  trustee,  as  a  trustee,  cannot  sell  the 
property  he  holds  in  trust  to  himself  as  an  individual,  either  di- 
rectly or  indirectly,  and  profit  thereby  as  against  the  cestui  que 
trust.^*" 

The  rule  that  a  purchase  by  a  trustee  shall  inure  to  the  benefit 
of  the  cestui  que  trust,  if  the  latter  so  elects,  is  not  intended  to  be 
remedial  of  actual  injur}^,  but  to  prevent  the  possibility  of  wrong, 
and  it  is  wholly  immaterial  that  the  conduct  of  the  former  may 

"  Woerner  Am.  Law  Admin.,  §  477.  lands  at  sales  made  by  him,  the  heirs 

^  Woerner  Am.  Law  Admin.,  §  484.  may  have  the  sale  set  aside  on  pay- 

^*  Morgan  v.  Wattles,  69  Ind.  260 ;  ment  of  the  purchase-money  and  the 

Nelson  v.   Hayner,  66  111.  487;   Val-  value   of  the  improvements  made  by 

entine  v.  Wysor,   123   Ind.  47,  23  N.  the  purchaser.    Shaw  v.  Swift,  1  Ind. 

E.  1076,  7  L.  R.  A.  788n.     If  the  ex-  565;  Doe  v.  Harvey,  3  Ind.  104;  Pot- 

ecutor     or     administrator     purchases  ter  v.  Smith,  36  Ind.  231. 


§    236  DISPOSITION    OF    REAL    PROPERTY.  355; 

have  been  innocent  and  free  from  any  imputation  of  fraud  or 


wrong." 


Speaking  of  such  sales,  Judge  Story  says :  "In  all  cases  where 
a  purchase  has  been  made  by  a  trustee  on  his  own  account,  of  the 
estate  of  his  cestui  que  trust,  it  is  the  option  of  the  cestui  que 
trust  to  set  the  sale  aside,  whether  bona  fide  made  or  not.  How- 
ever innocent  the  purchase  may  be  in  a  given  case,  it  is  poisonous 
in  its  consequences.  The  cestui  que  trust  is  not  bound  to  prove, 
nor  is  the  court  bound  to  decide,  that  the  trustee  has  made  a 
bargain  advantageous  to  himself.  The  fact  may  be  so,  and  yet 
the  party  not  have  it  in  his  power  distinctly  and  clearly  to  show  it. 
There  may  be  fraud  and  yet  the  party  not  be  able  to  show  it.  It 
is  to  guard  against  this  uncertainty  and  hazard  of  abuse,  and  to 
remove  the  trustee  from  temptation,  that  the  rule  does  and  will 
permit  the  cestui  que  trust  to  come  at  his  own  option,  and,  with- 
out showing  essential  injury,  to  insist  upon  the  experiment  of 
another  sale."^* 

If  an  administrator,  at  his  own  foreclosure  sale  against  real 
estate  of  his  intestate,  bids  off  the  land  and  has  the  title  conveyed 
to  the  heirs  of  such  intestate,  such  sale  will  not  be  void  and  the 
heirs  cannot  afterwards  complain  that  such  sale  was  made  by  the 
administrator  without  an  order  of  the  proper  court.  Such  pur- 
chase could  not  be  made  by  the  administrator  for  his  owrt 
benefit.^'^ 

In  the  absence  of  fraud  the  wife  of  an  executor  may  purchase 
land  at  a  sale  made  by  her  husband  in  his  fiduciary  character;  and 
if  such  purchase  is  made  in  good  faith  it  will  be  upheld.*" 

Knowledge  by  the  heirs  that  the  administrator  or  executor 
made  such  purchase  of  the  decedent's  real  estate,  and  their  allow- 

^  Wilson    V.    Brookshire,    126    Ind.  the    lands    resold.      Martin    v.    Wyn- 

497,  25  N.  E.  131,  9  L.  R.  A.  792n.  coop,  12  Ind.  266,  74  Am.  Dec.  209. 

^'1   Story's  Equity,  §  323;  Reed  v.  ^Hoover   v.    Malen,    83    Ind.    195; 

Aubrey,  91  Ga.  435,  17  S.  E.  1022,  44  Murphy  v.  Teter,  56  Ind.  545 ;  Martin 

Am.  St'.  49 ;  Caldwell  v.  Caldwell,  45  v.  Wyncoop,  12  Ind.  266,  74  Am.  Dec. 

Ohio   St.   512.   15   N.   E.   297;   Bland  209;  Hunsucker  v.  Smith,  49  Ind.  114. 

V.  Fleeman,  58  Ark.  84,  23  S.  W.  4.  *"  Crawford   v.    Gray,    131    Ind.    53, 

On   application   to  set  the   sale  aside  30  N.  E.  885. 
in  such  a  case,  the  court  may  order 


356  INDIANA  PROBATE  LAW.  §  236 

ing  him,  without  objection,  to  take  possession  thereof,  and  make 
valuable  improvements  thereon,  does  not  estop  them  from  bring- 
ing an  action  to  set  aside  such  sale,  and  the  executor  or  adminis- 
trator can  make  no  valid  defense  to  such  action,  but  must  be 
satisfied  with  a  repayment  of  the  money  he  has  invested  in  such 
purchase,  with  interest,  and  money  expended  in  making  perma- 
nent and  valuable  improvements  on  such  real  estate  after  a  resale 
of  the  property.*^ 

The  rule  applies  not  only  as  to  executors  and  administrators 
themselves,  but  extends  to  all  persons  intrusted  with  the  re- 
sponsibility for  and  direction  of  such  sales,  and  imposes  upon 
them  the  duty  of  seeing  that  the  property  is  sold  to  the  best  ad- 
vantage and  that  no  occasion  is  given  to  charge  collusion  or  un- 
fairness in  the  sale.  Hence  attorneys  who  represent  executors 
and  administrators  in  the  settlement  of  estates  cannot  be  per- 
mitted to  buy  at  sales  made  by  their  clients.*- 

The  rule,  however,  does  not  preclude  the  administrator  or 
executor,  from  afterwards  buying  from  the  purchaser  if  there 
was  no  understanding  at  the  time  of  the  sale  by  such  officer  that 
he  should  have  an  interest  in  the  purchase.  But  such  a  subse- 
quent purchase,  if  made  by  the  administrator  soon  after  the  sale 
by  him,  for  the  same  consideration,  or  a  mere  nominal  considera- 
tion is  enough  to  arouse  suspicion,  and  if  timely  steps  are  taken 
by  those  interested,  could  be  avoided."^ 

"  Potter    V.    Smith,    36    Ind.    231 ;  the  sale  of  said  real  estate,  and  that, 

Shepherd  v.  Fisher,  17  Ind.  229;  Doe  when  sold,  said  real  estate  was  pur- 

V.  Harvey,  3  Ind.  104 ;  Shaw  v.  Swift,  chased   by   one   Robert   Graham,   the 

1   Ind.   565.     The  heirs  are  the  only  record    was    sufficient    to    put    subse- 

persons    who    can    make    objections  quent  purchasers  on  inquiry,  and  was 

when   the    executor   or   administrator  constructive    notice    of    the    illegality 

becomes  the  purchaser  of  the  lands,  of  the  sale,  said  Robert  Graham  be- 

Carter  v.   Lee,  51   Ind.  292;   Murphy  ing    a    member    of    the    said    firm    of 

V.  Teter,  56  Ind.  545.           •  O'Brien  &  Graham.     Fisher  v.  Bush, 

*'' Where  an  action  was  brought  to  133  Ind.  315,  32  N.  E.  924. 

set   aside   an   administrator's   sale    of  "Morgan  v.  Wattles,  69  Ind.  260; 

real    estate   as   void,    and  the    record  Mitchell    v.    McMullen,   59    Mo.    252; 

shows    that    the    firm    of    O'Brien    &  Caldwell    v.    Caldwell,    45    Ohio    St. 

Graham,  acting  as  attorneys  for  said  512,  15  N.  E.  297. 
administrator,  procured  an  order  for 


§    237  DISPOSITION    OF    REAL    PROPERTY.  357 

One  who  purchases  land  in  good  faith  from  an  administrator, 
who  was  indirectly  a  purchaser  at  his  own  sale,  is  protected  in  his 
own  title  if  he  had  no  notice;"  but  such  vendee  is  not  protected 
as  an  innocent  purchaser  if  he  acquires  notice  at  any  time  before 
paying  the  purchase-money.*^ 

The  mere  fact  that  the  purchaser  conveys  to  the  administrator 
a  month  after  the  sale  for  an  increased  consideration  is  not  of 
itself  sufficient  to  constitute  fraud.*® 

§  237.    Such  sale  void  or  voidable,  limitation,  resale,  etc. — 

The  question  whether  a  sale  of  a  decedent's  property  to  himself 
by  an  executor  or  administrator  is  void  or  merely  voidable  is  one 
which  depends  to  a  large  extent  upon  the  facts  recited  in  the 
record.  There  is,  it  is  true,  a  line  of  decisions  in  this  state  which 
hold  that  such  purchase  by  an  executor  or  administrator  at  his 
own  sale  is  void."  While  this  statement  of  the  law  may  be  lit- 
erally true  where  the  record  affirmatively  shows  a  sale  by  a  trus- 
tee, executor  or  administrator  to  himself,  yet  where  such  fact 
does  not  affirmatively  appear  from  the  record,  but  on  the  contrary 
the  record  shows  a  sale  to  one  who  was  not  disciualified  from 
purchasing,  although  the  executor,  administrator  or  trustee  was, 
in  fact,  the  real  purchaser,  the  sale  would  not  be  void  but  only 
voidable.*^ 

"Otis  V.   Kennedy,   107  Mich.  312,  self,  such   sale   is  not  void,  and  the 

65  N.  W.  219.  purchaser    is    entitled    to    the    rents. 

*"  Mackey  v.  Bowles,  98  Ga.  730,  25  :\lurphy  v.  Teeter,  56  Ind.  545.     Such 

S.  E.  834.  purchase  would  be  voidable  at  the  in- 

'"  Louden  v.   IMartindale,   109  Mich,  stance  of  those  interested  in  the  es- 

235,  67  N.  W.  133.  tate. 

"Valentine  v.  Wysor,  123  Ind.  47,  ^"  Earle  v.  Earle.  91  Ind.  27;  Com- 

23  N.  E.  1076,  7  L.  R.  A.  788n;  Mar-  egj-s  v.  Emerick,  134  Ind.  148,  33  N. 

tin  v.  Wyncoop,  12  Ind.  266,  74  Am.  E.    899,    39   Am.    St.    245;    Perry    on 

Dec.    209;    Hunsucker    v.    Smith,    49  Trusts,    §  224.     In   sales  voidable  by 

Ind.    114;    Nelson   v.   Hayner,  66  111.  reason   of   the   purchase   of   the  land 

487;    Murphy  v.   Teter,  56  Ind.  545;  by  the  executor  or  administrator,  the 

Rochester  v.  Levering,   104  Ind.  562,  heirs   may   have   such   sale   set  aside. 

4  N.  E.  203;  Potter  v.  Smith,  36  Ind.  Shaw   v.   Swift,    1    Ind.   565;    Doe  v. 

231 ;  Morgan  v.  Wattles,  69  Ind.  260.  Harvey,  3  Ind.   104.     In   such  action 

If   an   administrator  bids   in  land   at  the  five  year  statute  of  limitation  is 

sherifif's  sale  on  a  judgment  in  favor  a  good  defense.     Fisher  v.  Bush,  133 

of  the  estate,  and  takes  title  in  him-  Ind.  315,  32  N.  E.  924. 


358  INDIANA  PROBATE  LAW.  §  237 

In  one  case  it  is  said  "the  general  and  correct  rule,  as  estab- 
lished by  the  weight  of  authority,  is  that  a  judgment  by  a  court 
of  competent  jurisdiction  is  not  void  unless  the  thing  lacking,  or 
making  it  so,  is  apparent  upon  the  face  of  the  record.  If  the  in- 
firmity do  not  so  appear,  the  judgment  is  not  void  but  voidable."*" 
And  it  is  further  said  that  "if  a  sale  be  void,  it  may  be  treated 
as  a  nullity,  and  it  is  not  necessary  to  set  it  aside  by  direct  attack ; 
it  may  be  disregarded  in  collateral  proceedings;  but  if  it  be  void- 
able only,  it  has  full  force  and  effect  until  set  aside  in  proper  pro- 
ceedings, and  cannot  be  attacked  collaterally. "^"^ 

While  parties  and  privies  to  proceedings  cannot  show  their  in- 
validity in  collateral  proceedings  by  bringing  forward  matters 
extraneous  to  the  record  itself,^^  yet  on  a  proper  proceeding 
brought  by  the  parties  interested,  to  avoid  a  voidable  sale  of 
property,  by  an  executor  or  administrator  to  himself  made  indi- 
rectly through  a  third  person,  proof  dehors  the  record  is  admis- 
sible, and  it  may  be  shown  that  the  real  purchaser  of  the  property 
was  the  executor  or  administrator.^'- 

In  an  action  brought  by  the  heirs  to  set  aside  a  sale  of  land 
made  by  the  administrator  to  himself  through  a  third  person, 
which  action  is  brought  by  them  against  others  than  the  adminis- 
trator, a  complaint,  which,  after  reciting  the  sale,  its  confirmation, 
etc.,  simply  alleges  that  the  administrator  has  held  possession  of 
the  land  ever  since  the  sale,  and  that  the  plaintiffs  are  entitled  to 
have  the  sale  declared  void,  states  no  cause  of  action. ^^ 

'"Earle  v.  Earle,  91  Ind.  27.  tlie    facts,    they    cannot    maintain    an 

'"  Comegys    v.     Emerick,    134    Ind.  action  to   set  the   sale  aside.     Axton 

148,  33  N.   E.  899,  39  Am.   St.   245.  v.  Carter,  141  Ind.  672,  39  N.  E.  546. 

The  heirs  may  make  a  valid  sale  of  °' Harman   v.   Moore,   112  Ind.  221, 

their  interest  in  the  land  of  a  dece-  13  N.  E.  718;  Cain  v.  Goda,  84  Ind. 

dent  to  his  administrator.     Carter  v.  209;    Lantz   v.    Maffett,    102    Ind.    23, 

Lee,   51   Ind.  292.     If  there   is   suffi-  26  N.  E.  195. 

cient  in  the  record  to  show  the  sale  "  Comegys    v.    Emerick.     134    Ind. 

invalid  it  will  amount  to  constructive  148,  33   N.   E.   899,  39  Am.    St.  245; 

notice.     Fisher  v.  Bush,  133  Ind.  315,  Clark  v.   Hillis,   134  Ind.  421,   34  N. 

32   N.    E.  924.     Where  the  heirs   re-  E.  13. 

ceived    the    surplus    proceeds    arising  '^^  Axton  v.  Carter,  141  Ind.  672,  39 

from    a   sale    to    himself   by    the    ad-  N.  E.  546. 

ministrator,    with    knowledge    of    all 


§    238  DISPOSITION    OF    REAL    PROPERTY.  359 

After  the  property  has  passed  into  the  hands  of  a  bona  fide  pur- 
chaser without  notice,  the  remedy  of  a  resale  is  not  available  to 
the  cestui  que  trust.  He  must  then  content  himself  with  the 
profits  made  by  the  trustee  in  the  transaction.  And  if  any  diffi- 
culty arises  in  determining  the  amount  of  profits  realized  by  him, 
he  should  be  charged  with  the  largest  amount  he  could,  under  all 
the  circumstances,  have  realized.  The  rule,  both  in  law  and 
equity,  is  that  if  a  person  having  charge  of  the  property  of  an- 
other so  confounds  it  with  his  own  that  it  cannot  be  distinguished, 
he  must  bear  all  the  inconveniences  of  the  confusion,  and  dam- 
ages will  be  given  against  him  to  the  utmost  value  of  the  arti- 
cles. ^^  Such  sale  can  only  be  avoided  by  the  cestui  que  trust  in 
a  direct  proceeding  brought  for  that  purpose,  but  such  avoidance 
cannot  be  effected  at  the  suit  of  a  third  person.^^ 

When  the  lapse  of  time  is  relied  upon  as  a  defense  in  an  action 
to  set  aside  a  sale  of  property  of  the  estate  to  the  executor  or 
administrator,  made  by  himself  as  such,  it  must  generally  be 
pleaded,  and  such  plea  must  be  based  upon  some  statute  of  lim- 
itation. Such  a  suit  is  not  an  action  for  the  recovery  of  real 
property,  and  therefore  the  limitation  of  twenty  years  does  not 
apply ;  and  such  purchase  not  being  actually  fraudulent  the  action 
does  not  come  within  the  six-year  limitation  in  actions  for  relief 
against  frauds.  As  such  suit  is  not  embraced  in  any  other  statute, 
it  comes  within  the  provision  of  section  296,  Burns'  R.  S.  1908, 
and  must  be  brought  within  fifteen  3'ears  from  the  time  the  cause 
of  action  accrues."" 

§  238,  Report  and  confirmation  of  sale. — Until  a  sale  of 
real  estate  by  an  administrator  has  been  reported  to  the  proper 
court  and  confirmed  the  sale  is  incomplete  and  no  title  either 

"Hawkins   v.   Ragan,  20   Ind.   193;  ernes.     Potter  v.  Smith,  2>6  Ind.  231. 

Brackenridge    v.    Holland,    2    Blackf.  '"  Morgan  v.  Wattles,  69  Ind.  260; 

(Ind.)   Z77,  20  Am.  Dec.   123;   Beck-  Potter  v.  Smith,  36  Ind.  231;  Brack- 

ett  V.  Bledsoe,  4  Ind.  256.  enridge  v.  Holland,  2  Blackf.    (Ind.) 

==Rice    V.    Cleghorn,    21    Ind.    80;  2,77,    20    Am.    Dec.    123;    Wilson    v. 

Carter  v.  Lee.  51  Ind.  292.     Such  an  Brookshire,    126    Ind.   497,   25    N.    E. 

action  must  be  brought  within  fifteen  131,  9  L.  R.  A.  792n. 
years    from   the   time   the   action   ac- 


360  INDIANA    PROBATE    LAW.  §    238 

legal  or  equitable  passes  to  the  purchaser."  The  report  of  the 
sale  is  required  to  inform  the  court  of  the  doings  of  the  executor 
or  administrator  in  respect  to  the  sale  of  the  real  estate,  and  to 
determine  whether  the  orders  of  the  court  in  reference  thereto 
have  been  complied  with,  while  the  confirmation  or  approval  of 
the  sale  by  the  court  is  necessary  as  a  final  and  judicial  determina- 
tion of  the  legality  and  validity  of  the  sale,  and  operates  to  cure 
all  previous  irregularities  in  the  proceeding.^*  But  such  con- 
firmation can  have  no  retroactive  effect  so  as  to  give  validity  to  a 
sale  which  is  wholly  void.^" 

All  sales  of  real  estate  made  by  an  executor  or  administrator 
must  be  reported  to  the  court  and  confirmed  by  it  before  any 
vested  title  passes  to  the  purchaser.^''  The  doctrine  is  that  "where 
there  are  divers  acts  concurrent  to  make  a  conveyance,  estate  or 
other  thing,  the  original  act  shall  be  preferred;  and  to  this  the 
other  acts  shall  have  relation."  And  in  sales  of  real  estate  by  an 
executor  or  administrator,  three  things  are  necessary  to  vest  the 
estate  in  the  purchaser:  first,  a  sale  by  the  executor  or  adminis- 
trator; second,  a  confirmation  of  the  sale  by  the  proper  court,  and 
an  order  for  the  making  of  a  conveyance;  third,  the  execution  of 
such  conveyance.  Such  conveyance,  when  executed  and  deliv- 
ered, relates  back  to  the  time  when  the  sale  was  confirmed  and 
the  deed  ordered,  and  vests  the  same  rights  in  the  purchaser  as  if 
the  deed  had  been  then  executed  and  delivered,  and,  perhaps, 
even  to  the  time  of  the  sale." 

"•Smith  V.  Wert,  64  Ala.  34;  Apel     Hammann  v.  Mink,  99  Ind.  279.     "It 


V.  Kelsey,  47  Ark.  413,  2  S.  W.  102 
Henry  v.  McKerlie,  78  Mo.  416 
Pool  V.  Ellis,  64  Miss.  555,  1  So.  725 
"'Thorn  v.  Ingram,  25  Ark.  52 
Osman   v.    Traphagen,   23    Mich.   80 


is  said  that  the  sale  was  not  in  con- 
formity with  the  order  of  sale.  But 
the  confirmation  of  the  sale,  however 
erroneous,  was  not  void.  It  must  be 
held  good  until  set  aside."     Maxwell 


Sankey's  Appeal,  55  Pa.   St.  491.  v.   Campbell,  45   Ind.   360;    Spaulding 

''  Cunningham     v.     Anderson,     107  v.  Baldwin,  31  Ind.  Z'Ki. 

Mo.  371,   17   S.   W.  972,  28  Am.   St.  "Bellows  v.  McGinnis,  17  Ind.  64; 

417;  Schlicker  V.  Hemenway,  110  Cal.  Landes   v.    Brant,    10   How.    (U.    S.) 

579,  42  Pac.  1063,  52  Am.  St.  116n.  348,    13    L.    ed.    449.    Any    departure 

^Williams   v.    Perrin,   12>   Ind.   57;  from  the  order  of  sale  must  be  held 

Comer  v.  Hart,  79  Ala.  389;  Apel  v.  to  be  cured  after  confirmation.    Ham- 

Kelsey,   47    Ark.    413,   2    S.    W.    102;  mann  v.  Mink,  99  Ind.  279. 


§    238  DISPOSITION    OF    REAL    PROPERTY.  36I 

Upon  the  report  being  made,  the  court  may,  before  confirm- 
ing the  sale,  inquire  into  the  proceedings  attending  it,  and  if  they 
appear  for  any  reason  to  be  unfair  or  irregular,  or  the  land  mis- 
described,  the  sale  should  not  be  confirmed.**-  But  in  making 
such  investigation  the  court  cannot  go  back  and  revise  the  orig- 
inal order  of  sale."^ 

A  sale  by  one  of  two  administrators,  where  the  order  is  made 
to  both,  is  valid  after  confirmation.^* 

The  statute  provides  that:  "Such  executor  or  administrator 
shall  make  return,  under  oath,  of  his  proceedings  in  the  premises, 
at  the  next  term  after  such  sale,  to  the  court  granting  the  order ; 
and  if  such  court  be  satisfied  therewith  it  shall  confirm  the  same, 
and  direct  such  executor  or  administrator  to  execute  a  convey- 
ance to  such  purchaser  of  such  lands  or  his  assignee;  but,  upon 
the  delivery  of  such  conveyance  to  such  purchaser  or  his  assignee, 
the  latter  shall  execute  and  deliver  to  such  executor  or  adminis- 
trator a  mortgage  upon  such  premises  according  to  the  terms  of 
the  sale,  the  expense  of  making  which  mortgage  and  the  record- 
ing thereof  shall  be  paid  by  such  purchaser  or  his  assignee ;  which 
said  mortgage  such  executor  or  administrator  shall  cause  to  be 
recorded  forthwith  in  the  proper  record  of  deeds  of  such  county; 
and  such  certificate  of  sale,  upon  the  delivery  of  such  convey- 
ance, shall  be  handed  over  to  such  executor  or  administrator;  and 
such  notes  shall  be  retained  by  him,  if  the  same  are  approved  by 
the  court.  ^^ 

A  confirmation  of  the  sale,  with  full  knowledge  of  all  the  facts, 
will  cure  any  defects  therein;  such  as  defects  in  the  notice  of  the 
sale ;  the  execution  and  delivery  of  the  deed  before  confirmation ; 
or  failure  to  state  the  time,  place  or  terms  of  the  sale;  or  a  sale 
for  less  than  the  appraisement.     The  order  of  sale,  the  sale,  its 

"Cruikshank    v.    Luttrell,    67    Ala.  collaterally.     Walker  v.  Hill,  111  Ind. 

318;    Davis    v.    Stewart,   4   Tex.   223.  223,  12  N.  E.  387. 

However  irregular  and  erroneous  the  ^^  Allen  v.  Shepard,  87  111.  314. 

proceedings  and  orders  in  relation  to  **  Osman    v.    Traphagen,    23    Mich. 

the   sale   and  conveyance  of  real   es-  80. 

tate  may  be,  yet  if  they  are  not  abso-  *^  Burns'  R.  S.  1908,  §  2874. 
lutely  void  they  cannot  be  questioned 


362  INDIANA    PROBATE    LAW.  §    238 

report  and  confirmation  are  steps  in  the  exercise  of  the  court's 
jurisdiction,  and  where  jurisdiction  has  been  acquired,  subsequent 
errors,  however  grave  and  glaring,  will  not  subject  the  proceed- 
ings to  collateral  attack.®'^  But  where  there  are  facts  in  the  record 
which  show  that  the  sale  was  absolutely  void,  a  confirmation 
will  not  make  the  sale  valid.''' 

A  confirmation  of  the  sale  is  necessary  to  complete  and  perfect 
the  title.''"*  After  the  sale  has  been  confii-med  the  purchaser  is 
entitled  to  the  possession  of  the  premises  sold,  and  to  all  tlie  rents 
and  profits  arising  therefrom ;  and  assumes  all  the  risk  and  hazard 
occurring  to  the  property  after  the  sale."® 

If  the  purchaser  has  taken  possession  and  has  received  from  the 
administrator  a  deed  to  the  premises,  a  long  possession  there- 
under will  raise  in  his  favor  a  presumption  of  the  approval  of  the 
sale.'" 

Where  the  heir  apj^ears  after  the  sale  of  lands  by  an  executor 
or  administrator,  and  objects  to  the  confirmation  of  such  sale, 
urging  as  a  ground  for  such  objection  a  title  in  himself  hostile  to 
that  of  the  ancestor,  and  his  objection  is  overruled  by  the  court 
and  the  sale  confirmed,  such  heir  is  concluded  by  such  judgment 
as  long  as  it  remains  unreversed.  For  however  irregular  and 
erroneous  the  proceedings  and  orders  of  the  court  may  be  in 
relation  to  the  sale  and  conveyance  of  the  real  estate,  such  pro- 
ceedings and  orders  are  not  void  but  must  be  held  valid  and  con- 
clusive when  questioned  collaterally.'^ 

■"■■Maxwell     v.     Campbell,    45     Ind.  78   Mo.  416;    Hammann  v.   Mink,  99 

360;  Hammann  v.  Mink,  99  Ind.  279;  Tnd.  279;  Pool  v.  Ellis,  64  Miss.  555, 

Blodgett  V.  Hitt,  29  Wis.   169;  Beid-  1    So.   725;    Graham  v.    Hawkins,   38 

ler  V.   Friedell,  44  Ark.  411;    Wyant  Tex.    628;    Greenough    v.    Small,    137 

V.    Tuthill,    17    Xeb.   495,   23    X.    W.  Pa.   St.  132,  20  Atl.  553,  21  Am.  St. 

342;    Spaulding   v.    Baldwin,   31    Ind.  859. 

376;    Jackson    v.    Magruder,    51    ^lo.         "'Ball   v.   First   Xat.   Bank,   80  Ky. 

55;  Brubaker  v.  Jones,  23  Kan.  411;  501. 

Gavin  v.   Graydon,  41  Ind.  559;  Da-        '"Smith  v.  Wert,  64  Ala.  34;  Neill 

vidson  V.  Koehler,  1(i  Ind.  398.  v.  Cody,  26  Tex.  286. 

*^Templeton  v.  Falls  Land  &c.  Co.,         "'Gavin    v.    Graydon,   41    Ind.   559; 

77  Tex.  55,  3  S.  W.  964.  Walker  v.   Hill,   111   Ind.  223,   12  N. 

•"Penu    V.    Heisey,    19   111.    295,    68  E.  387;  Smock  v.  Reichwine,  117  Ind. 

Am.    Dec.    597;    Henry   v.    McKerlie,  194,  19  X.  E.  776. 


§    239  DISPOSITION    OF    REAL    PROPERTY.  363 

The  provision  in  the  above  statute  that  the  report  shall  be  made 
"at  the  next  term  after  such  sale"  is  not  mandatory.  So  if  the 
report  of  sale  is  approved  and  the  sale  confirmed  before  the  next 
term  of  court  or  even  at  a  later  term  it  is  but  an  irregularity 
which  of  itself  will  not  vitiate  the  sale.'- 

Executors  selling  under  a  power  in  a  will  are  not  required  to 
report  the  sale  for  confirmation,  unless  such  sale  has  been  made 
under  an  order  of  court. '^ 

§  239.  The  deed  and  its  approval. — The  confirmation  of  a 
sale  does  not,  alone,  complete  the  sale.  The  complete  right  of  the 
purchaser  does  not  vest  until  the  full  payment  of  the  purchase- 
money,  or  a  full  compliance  on  his  part  with  the  terms  of  the 
sale,  and  the  execution  and  delivery  to  him  by  the  executor  or 
administrator,  of  a  proper  deed  of  conveyance  duly  appro^•ed  by 
the  probate  court. 

After  the  report  and  confirmation  of  the  sale  the  executor  or 
administrator  must  execute  and  deliver  to  the  purchaser  a  proper 
deed  of  conveyance,  at  the  same  time  taking  back  a  mortgage 
upon  the  premises  to  further  secure  the  payment  of  the  purchase- 
money.'*  The  statute  prescribes  the  form  of  a  deed  to  be  used, 
and  further  provides  that  it  shall  not  be  necessary  to  set  out  in 
such  conveyance  all  the  proceedings  preliminary  to  the  deed.'" 

As  the  deed  of  an  administrator  or  executor  is  not  required  to 
contain  a  recital  of  all  the  proceedings  leading  up  to  it,  but  refers 
to  the  record  of  the  court  for  such  recitals,  and  as  such  deed  de- 
pends upon  the  statements  in  such  record,  it  is  provided  by  statute 
in  case  of  the  destruction  of  the  records  of  such  sale  that  when- 
ever, heretofore  or  hereafter,  any  deed  shall  ha^•e  been  executed 
by  any  administrator,  executor,  guardian,  sheriff,  or  commis- 
sioner of  court,  by  virtue  of  any  order,  judgment,  or  decree  of 
court,  or  by  virtue  of  an}^  will,  or  by  virtue  of  any  sale  made  upon 
aiLy  execution  issued  on  any  judgment,  and  the  record  of  such 
order,  etc.,  shall  have  been  destroyed  by  fire  in  the  burning  of  any 

'-  Custer  V.  Holler.  160  Ud.  505,  67        '*  Burns'  R.  S.  1908,  §  2874. 
N.  E.  228.  "  Burns'  R.  S.  1908,  §  2880. 

"  See  ante,  §§  191,  192. 


364  INDIANA    PROBATE   LAW.  §    239 

court-house  in  this  state,  then  such  deed,  or  the  record  thereof, 
shall  be  prima  facie  evidence  of  all  the  facts  recited  in  such  deed, 
and  of  the  regularity  and  sufficiency  of  all  the  proceedings,  rec- 
ords, and  papers  in  virtue  of  which  the  deed  was  executed.'® 

One  who  asserts  title  to  land  under  a  deed  from  an  executor 
or  administrator  must  make  proof  of  the  proceedings  whereby 
such  executor  or  administrator  was  authorized  to  make  the  sale. 
The  recitals  in  the  deed  are  insufficient,  and  the  court  will  not 
take  judicial  knowledge  of  such  proceedings.  The  party  who 
produces  such  deed  must  show  that  its  execution  was  author- 
ized.'^ 

A  deed  is  inoperative  to  convey  title  until  after  the  report  and 
confirmation  of  the  sale,  but  if  the  deed  has  been  executed  and 
delivered  before  the  report  of  sale,  while  made  without  authority, 
yet  if  the  sale  is  afterwards  reported  and  confirmed  and  a  deed 
ordered,  and  the  deed  previously  made  reported  to  the  court  and 
approved,  this  will  render  such  deed  operative  and  effective  to 
convey  title  to  the  purchaser  at  and  from  the  time  of  its  approval. 
After  the  report  and  confirmation  the  deed  previously  made  may 
be  adopted,  and  becomes  as  effective  as  if  it  had  been  then  pre- 
pared and  executed."^ 

The  omission  of  the  page  of  the  order  book  of  the  court  con- 
taining the  order  of  sale  from  the  deed,  although  the  statute 
requires  its  insertion,  does  not  render  such  deed  invalid.  A  pur- 
chaser is  entitled  to  deed  with  the  statutory  recitals,  but  their 
omission  does  not  vitiate  the  deed.-'® 

'^Burns'  R.   S.   1908,  §  479.     When  Grusenmeyer   v.   Logansport,  76   Ind, 

a  will  directs  that  real  estate  shall  be  549;    Huddleston    v.    Ingels,    47    Ind. 

appraised  before  sale,  it  will  be  pre-  498;  Armstrong  v.  Jackson,  1  Blackf. 

Slimed  after  sale  b\-  the  executor,  in  (Ind.)  210,  12  Am.  Dec.  225. 

the  absence  of  proof  to  the  contrary',  "  Hammann  v.  Mink,  99  Ind.  279; 

where  the  deed  purports  to  have  been  Maxwell  v.  Campbell,  45  Ind.  360. 

made  in  accordance  with  the  will  and  '°  Hammann  v.   Mink,  99  Ind.  279 ; 

the    public     records    have    been    de-  Thomas  v.  Le  Baron,  8  Met.  (Mass.) 

stroj'ed,    that    an    appraisement    was  355;   Stryker  v.  Vanderbilt.  27  N.  J, 

had.     Davis  v.  Hoover,  112  Ind.  423,  L.  68;  McGhee  v.  Ho>i:,  106  Pa.  St. 

14  X.  E.  468.  516. 

"La   Plante   v.    Lee,   83   Ind.    155; 


§    239  DISPOSITION    OF    REAL    PROPERTY.  365 

The  maxim  caveat  emptor  applies  to  such  sales,  and  the  cove- 
nants of  the  administrator  in  the  deed  do  not  bind  the  estate.®'' 
Such  covenants  will  be  held  to  be  his  personal  covenants. ^^ 

After  the  confirmation  of  the  sale,  a  purchaser  who  has  com- 
plied with  all  the  terms  of  the  sale  has  such  an  equity  in  the  land 
as  will  enable  him  to  compel  the  administrator  to  execute  him  a 
deed.'' 

The  deed,  when  made,  relates  back  to  the  time  of  the  confirma- 
tion of  the  sale,  and  confers  the  same  title  as  if  it  had  been  exe- 
cuted at  that  time.®^ 

If  the  record  of  the  proceedings  does  not  show  that  the  deed  to 
the  purchaser  was  prematurely  made,  such  deed  will  be  valid,  and 
particularly  after  the  lapse  of  five  years.'**  And  if  for  any  reason 
the  deed  is  invalid  the  executor  or  administrator  may  execute  to 
the  purchaser  a  second  one.®^ 

The  deed  should  be  executed  by  the  executor  or  administrator 
in  his  official  capacity,  and  the  character  in  which  he  executes  it 
should  appear  in  the  deed.®''  But  the  deed  will  be  sufficient  with- 
out reciting  the  authority  under  which  it  is  given,  if  it  refers  to 
the  order  of  sale  and  describes  the  executor  or  administrator  as 
such.®' 

The  recitals  in  a  deed  are  said  to  be  not  of  the  essence,  but  only 
of  the  form  of  the  deed,  and  while  the  purchaser  is  entitled  to 

^nVorthy  V.  Johnson,  8  Ga.  236,  52  121,  8  X.  E.  71;  Burns'  R.  S.   1908, 

Am.    Dec.   399;    Lynch   v.    Baxter,   4  §  295. 
Tex.  431,  51  Am.  Dec.  735.  ^  Moody  v.  Hamilton,  22  Fla.  298. 

*'Prouty    V.    Mather,    49    Vt.    415;        '*  Lockwood  v.  Sturdevant,  6  Conn. 

Hale  V.   Marquette,  69  Iowa  Z76,  28  Z7?,. 

X.   W.  647;   Dunlap  v.- Robinson,   12        ""  Coffin  v.   Cook,   106  N.   Car.  Z76, 

Ohio    St.    530;    Doe    v.    Cassiday,    9  11  S.  E.  371.     The  recitals  in  a  deed 

Ind.  63.  are  not  sufficient  evidence  of  the  pro- 

"  Anderson  v.  Bradlej',  66  Ala.  263 ;  ceedings     authorizing     a     sale.       La 

Jelks  V.  Barrett,  52  Miss.  315;  Lewis'  Plante  v.   Lee,  83   Ind.   155.     Failure 

Estate,  39  Cal.  306.  to  insert  in  the  deed  the  page  of  the 

*^  Hammann  v.  Mink,  99  Ind.  279;  order-book,  where  the  order  of  sale 

Bellows  V.  McGinnis,  17  Ind.  64.  is    entered,    does    not    invalidate    the 

"  Hutchinson   v.    Lemcke,    107   Ind.  deed.      Hammann    v.    Mink,    99    Ind. 

279. 


366  INDIANA  PROBATE  LAW.  §  24O 

have  in  the  deed  all  the  recitals  required  by  the  statute,  yet  their 
omission  does  not  vitiate  the  deed.*^ 

Upon  his  compliance  with  the  terms  of  the  sale,  and  the  con- 
firmation of  the  sale  by  the  court,  the  purchaser  is  entitled  to  a 
deed.  Neither  the  court  nor  the  administrator  can  impose  any 
other  condition  upon  him.*** 

The  deed  may  be  made  to  the  purchaser,  or  to  an  assignee  of 
his  or  to  any  person  to  whom  the  purchaser  ma'y  direct.®*' 

§  240.  When  a  resale  may  be  had. — If  the  court  shall  be 
satisfied  that  such  proceedings  were  unfair,  or  that  the  sum  for 
which  the  real  estate  or  any  part  thereof  was  sold  is  greatly  dis- 
proportioned  to  the  real  value  thereof;  or  that  a  sum  exceeding 
such  sums  at  least  ten  per  cent,  exclusive  of  the  expense  of  such 
sale,  can  be  obtained  therefor,  the  court  may  vacate  such  sale,  in 
whole  or  in  part.  Or  if  it  shall  appear  that  the  sureties  taken  on 
the  notes  for  the  purchase-money  are  insufficient,  such  sale  shall 
not  be  confirmed  until  additional  surety,  to  the  satisfaction  of 
the  court,  be  given;  and  if  such  purchaser  fail  to  give  such  surety 
within  the  time  required  by  the  court,  the  sale,  as  to  such  pur- 
chaser, shall  be  vacated.  When  any  such  sale,  in  whole  or  in 
part,  shall  be  vacated,  the  court  shall  direct  another  sale  to  be 
made,  under  the  same  regulations  governing  the  first  order  and 
sale  as  to  the  real  estate  necessary  to  re-expose  to  sale."^ 

This  statute  is  held  to  apply  to  sales  of  personal  property  as 
well  as  to  real  estate.  It  is  not  the  mere  inadequacy  of  the  price 
received  which  will  justify  the  court  in  vacating  a  sale,  unless  the 
price  bid  is  so  grossly  insufficient  as  to  satisfy  the  court  that  there 
has  been  unfairness,  or  actual  fraud  in  the  proceedings.®- 

One  who  objects  to  the  confirmation  of  the  sale,  not  on  account 
of  the  insufficiency  of  the  price  received,  but  because  more  could 
have  been  had,  must  be  prepared  to  support  his  objection  by  an 

^  Jones   V.   Taylor,  7  Tex.  240,  56  Am.    Dec.   643;    Ewing   v.    Higby,   7 

Am.    Dec.   48n;    Allison   v.   Kurtz,   2  Ohio  198,  28  Am.  Dec.  633. 

Watts  (Pa.)   185.  "^Burns'  R.  S.  1908,  §  2875. 

'^Cockins  V.  McCurdy,  40  Kan.  758,  "=  Williams   v.    Perrin,   11   Ind.   57; 

20  Pac.  470.  Allen  v.  Shepard,  87  111.  314. 

•"Halleck    v.    Guy,   9    Cal.    181,    70 


§    240  DISPOSITION    OF    REAL    PROPERTY.  36/ 

offer  to  increase  the  sum  bid  at  least  ten  per  cent,  exclusive  of  the 
costs  of  a  resale.''^  It  is  likely,  with  the  consent  of  the  court  and 
all  those  who  may  be  interested,  that  the  person  who  is  willing  to 
pay  such  a  ten  per  cent,  increase  might  be  substituted  for  the  pur- 
chaser in  the  proceedings  and  the  expense  of  a  second  sale 
avoided."* 

When  the  executor  or  administrator  by  collusion  with  a  would- 
be  purchaser  prevents  competition  at  the  sale  so  that  the  land  is 
sold  for  less  than  it  would  otherwise  have  brought,  there  is  such 
fraud  and  unfairness  as  will  justify  the  court  in  ordering  a  resale 
of  the  premises.  Any  agreement  entered  into  to  prevent  compe- 
tition among  bidders  at  such  sale  is  void,  and  the  sale  should  be 
vacated. '^^ 

Under  this  statute,  if  the  purchaser  himself  has  been  misled  by 
the  fraud  of  the  administrator,  a  court  would  probably  grant  him 
relief  by  vacating  the  sale."** 

The  court  cannot  act  arbitrarily  under  this  statute,  and  where 
a  sale  has  been  made  in  good  faith  under  a  valid  order  the  court 
cannot  set  aside  such  sale  merely  to  permit  the  administrator  to 
file  an  amended  petition  asking  to  sell  an  additional  lot  of  land.®^ 

If  a  sale  made  in  good  faith  is  set  aside  the  purchaser  is  en- 
titled to  a  repayment  of  the  purchase-money  and  will  be  given  a 
lien  upon  the  land  for  that  purpose."^ 

"'Kain  v.  Masterton,  16  N.  Y.  174;  Perrin,  IZ  Ind.  57.  If  an  executor  or 
Wright  V.  McNatt,  49  Tex.  425 ;  Per-  administrator  colludes  with  a  pur- 
kins  V.  Gridley,  50  Cal.  97;  Stiver's  chaser  so  as  to  prevent  competition 
Appeal,  56  Pa.  St.  9.  at  the  sale,  and  the  land  is  sold  for 

*•  Dodd  V.  Templeman,  Id  Tex.  57,  less   than   its   value,  the  sale  will  be 

13  S.  W.  187.  set  aside.     Jones  v.   French,  92  Ind. 

"'Jones    V.    French,    92    Ind.    138;  138.      When    a    sale    is    set    aside    a 

Goldman  v.   Oppenheim,   118  Ind.  95,  good-faith  purchaser  will  have  a  lien 

20   N.   E.   635;    Anderson   v.    Pedigo,  on  the  land  for  his  purchase-money, 

126  Ind.  564,  26  N.  E.  397.  when  the  same  has  been  properly  ap- 

"^Fore   V.    McKenzie,  58   Ala.    115;  plied.     Jones  v.  French,  92  Ind.  138. 

Ives  V.   Pierson,  Freem.  Ch.    (Miss.)  "Bell  v.   Shaffer,   154  Ind.  413,  56 

220;     Shields   v.    Allen,    V    N.    Car.  N.  E.  217. 

375;      Gwinn    v.    Williams,    30    Ind.  "'Jones    v.    French,    92    Ind.    138; 

374.     This   section  applies  to  private  Stults  v.  Brown,  112  Ind.  370,  14  N. 

sales  of  personal  property  made  un-  E.  230,  2  Am.   St.   190;   Shepherd  v. 

der  an  order  of  court.     Williams  v.  Fisher,  17  Ind.  229. 


368  INDIANA    PROBATE    LAW.  §    24 1 

§  241.  Setting  sale  aside  on  account  of  defects. — The  stat- 
ute provides  that  no  sale  of  any  real  estate,  made  by  an  executor, 
administrator,  or  guardian,  shall  be  voided  on  account  of  any 
irregularity  or  defect  in  the  proceedings,  if  it  shall  appear 

First.  That  the  sale  was  authorized  by  the  court  having  juris- 
diction of  the  parties  and  the  subject-matter. 

Second.  That  the  executor,  administrator,  or  guardian  gave 
bond  as  required  by  law,  or  has  accounted  for  the  proceeds  of 
such  sale.®" 

Third.  That  notice  of  the  time  and  place  of  sale  was  given  in 
the  manner  provided  by  law. 

Fourth.  That  the  premises  were  sold  accordingly,  and  are 
held  by  or  under  one  who  purchased  them  in  good  faith. ^ 

An  action  to  set  aside  a  sale  of  real  estate  made  by  an  executor 
or  administrator  must  be  brought  in  the  county  where  the  real 
estate  or  some  part  of  it  is  situated;-  and  such  action,  brought  by 
one  who  was  a  party  to  the  proceedings  to  sell,  must  be  begun 
within  five  years  after  the  confirmation  of  the  sale.^ 

If  a  court  which  appointed  an  administrator  and  directed  the 
sale  of  an  intestate's  land  had  no  jurisdiction,  the  sale  would  be 
wholly  void,  and  there  would  be  no  necessity  for  a  proceeding  to 
set  aside  such  sale.* 

All  who  are  parties  to  a  sale  by  an  executor  or  administrator, 

are  necessary  parties  to  an  action  to  avoid  and  set  aside  such 

sale."* 

*"!£  a  bond  to  secure  the  proceeds  ceeds    of   said    sale    on    liabilities    of 

of   sale   is   not   given,   and   the   pur-  said  estate,   for  which  the  land  was 

chase-money    is    not    accounted    for,  liable.     Fisher  v.  Bush,  133  Ind.  315, 

the  sale  will  be  void.     McKeever  v.  32  N.  E.  924. 

Ball,    71    Ind.    398.      The   proceeding  'Vancleave    v.     Milliken,     13    Ind. 

cannot  be  collaterally  attacked  for  a  105:    Vail    v.    Halton,    14    Ind.    344; 

failure  to  give  such  bond.     Davidson  Potter  v.   Smith,  36  Ind.  231.     If  an 

V.  Bates,  111  Ind.  391,  12  N.  E.  687.  administrator    colludes    with    a    pur- 

^  Burns'  R.  S.  1908,  §  2882.  chaser   and    prevents    competition    in 

^McManus    v.    Bush,   48    Ind.   303.  the  sale  of  land,  the  heirs  may  have 

Where  an   action   is   brought   to   set  the  sale  set  aside.     Jones  v.  French, 

aside   a   void   administrator's   sale  of  92  Ind.  138. 

land,   the  plaintiff   is  not   entitled  to  *  McManus  v.  Bush,  48  Ind.  303. 

the  relief  demanded  until  he  accounts  'Hoe  v.  Wilson,  9  Wall.    (U.   S.) 

for  the  amount  paid  out  of  the  pro-  501,  19  L.  ed.  762;  Burney  v.  Ludel- 


241 


DISPOSITION    OF    REAL    PROPERTY.  369 


The  record  of  an  illegal  sale  by  an  executor  or  administrator 
is  sufficient  to  amount  to  constructive  notice  of  such  illegality, 
when  the  connection  between  the  facts  disclosed  by  the  record 
and  the  facts  to  be  discovered  are  such  that  the  former  may  be 
said  to  furnish  a  reasonable  and  natural  clue  to  the  latter.*' 

Before  a  sale  made  by  an  executor  or  administrator  can  be  set 
aside  by  the  heirs  or  devisees,  they  must  either  repay  or  tender 
back  the  amount  of  purchase-money  paid,  together  with  taxes 
paid,  and  improvements  made  by  the  purchaser;  otherwise  the 
purchaser  will  be  entitled,  in  case  the  sale  is  set  aside,  to  a  lien 
for  such  part  of  the  purchase-money,  at  least,  as  has  been  applied 
to  the  payment  of  the  debts  of  the  estate.^ 

A  purchaser,  however,  cannot  recover  for  money  expended  or 
improvements  made  after  he  has  had  notice  of  the  action  to  set 
aside  the  sale.^ 

Where  the  sale  is  void  and  unauthorized  for  want  of  jurisdic- 
tion, the  purchaser  is  not  entitled  to  a  specific  lien  upon  the  land 
for  the  purchase-money  paid,  but  in  so  far  as  such  purchase- 
money  has  been  applied  to  the  payment  of  debts  of  the  estate  the 
purchaser  has  a  right  to  be  subrogated  to  all  the  rights  of  the 
original  creditors  whose  claims  have  been  paid  therewith;  and 

ing,    41    La.    Ann.    627,    6    So.    248.  facts    therein    recited   expressly,   and 

Where  a  sale  of  lands  by  an  admin-  of   such   fa(;ts   as   may  be   fairly   in- 

istrator  is  void,  the  statute  of  limita-  ferred  from  the  recitals.    Johnson  v. 

tions  as  to  an  action  to  set  aside  the  Hess,  126  Ind.  298,  25  N.  E.  445,  9 

sale  will  begin  to  run  from  the  time  L.  R.  A.  471. 

the  purchaser  takes  possession  under  '  Xeel  v.  Carson,  47  Ark.  421,  2  S. 

the  certificate  of  sale.     L'Hommedieu  W.  107;  Fisher  v.  Bush,  133  Ind.  315, 

V.  Cincinnati  &c.  R.  Co.,  120  Ind.  435,  32  X.  E.  924 ;  Shepherd  v.  Fisher,  17 

22   X.   E.    125.     Unless   within   some  Ind.   229;    Jones   v.    French,  92   Ind. 

statutory  exception,  the  limitation  of  138;    Stults   v.   Brown,    112   Ind.   370, 

five    years    will    protect    such    sale.  14  X.  E.  230,  2  Am.  St.  190;  Morris 

Hutchinson  v.  Lemcke,  107  Ind.   121,  v.    Goodwin,    1  Ind.   App.  481,  27  N. 

8  X.  E.  71.  E.  985 ;  Smith  v.  Knoebel,  82  111.  392 

'Fisher  v.   Bush,    133   Ind.   315,   32  Schafer     v.     Causey,     76     Mo.     365 

N.    E.    924;    Jones    v.    McXarrin,    68  Wehrle  v.  Wehrle,  39  Ohio  St.  365 

Me.  334.     The  record  of  a  judgment  Walton  v.  Cox,  67  Ind.  164. 

is  only  constructive  notice  of  all  the  '  Snider  v.  Snider,  3  W.  Va.  200. 


24— Pro.  L.aw, 


3/0  INDIANA    PROBATE    LAW.  §    242 

his  lien  is  according  to  the  priorities  of  such  creditors,  and  no 
greater." 

In  this  connection  there  is  a  statiitor\'  provision  or  two  which 
is  appHcable.  It  is  provided  that  "whenever  any  land  sold  by  an 
executor,  administrator,  guardian  *  *  *  js  afterwards  recov- 
ered in  the  proper  action  by  any  person  originally  liable,  or  in 
whose  hands  the  land  would  be  liable  to  pay  the  demand  or  judg- 
ment for  which,  or  for  whose  benefit  the  land  was  sold,  or  any 
one  claiming  under  such  person,  the  plaintiff  shall  not  be  entitled 
after  the  filing  of  the  complaint  to  a  writ  for  the  possession  with- 
out having  paid  the  amount  justly  due."'" 

How  the  amount  due  shall  be  determined  and  adjusted  is  pro- 
vided for  as  follows:  "The  defendants  in  tiie  main  action,  or 
any  of  them,  may  file  their  complaint,  setting  forth  the  sale  and 
title  under  it,  and  any  other  matter  contemplated  in  this  act. 
Proceedings  shall  then  be  had  to  determine  the  amount  of  pur- 
chase-money paid,  with  interest,  the  value  of  the  lasting  improve- 
ments, the  damages,  if  any,  which  the  premises  have  sustained  by 
waste  or  cultivation,  the  value  of  the  rents  and  profits,  and  the 
taxes  paid.  If  any  balance  remain  due  from  the  plaintiff  in  the 
main  action,  the  court  shall  fix  a  reasonable  time  within  which 
he  shall  pay  the  same,  and  if  it  be  not  paid  within  that  time,  the 
court  shall  order  the  lands  to  be  sold  without  relief  from  valua- 
tion or  appraisement  laws.  In  case  of  sale,  there  shall  be  paid 
the  costs  of  the  proceedings  and  the  amount  due  the  defendant, 
with  interest,  and  the  surplus,  if  any,  shall  be  paid  to  the  plain- 
tiff."^^ 

§  242.  Same — Time  within  which  action  must  be  brought. 
— It  is  provided  by  the  fourth  clause  of  section  295.  R.  S.  1908, 
that  actions  for  the  recovery  of  real  property  sold  by  executors 
or  administrators,  upon  a  judgment  specially  directing  the  sale  of 
such  property,  brought  by  any  party  to  the  judgment,  his  heirs. 
or  any  person  claiming  title  under  a  party,  acquired  after  the 

°  Sheldon,  Subrogation,  §202;   Dun-  Ellis.  64  Miss.  555.  1  So.  725. 

can  V.  Gainey,  108  Ind.  579.  9  X.  E.  '"Burns'  R.  S.  1908.  §  1131. 

470;   Frost  v.   Atwood,  12>  Mich.  67,  "Burns'  R.  S.   1908,  §  1132. 
41  N.  W.  96,  16  Am.  St.  560;  Pool  v. 


§    243  DISPOSITION    OF    REAL    PROPERTY.  37 1 

date  of  the  judgment,  must  be  brought  within  five  years  after  the 
sale  is  confirmed. 

This  statute  of  limitation  begins  to  run  at  the  date  of  the  con- 
firmation of  the  sale,  and  actions  falling  within  its  terms  are 
barred  after  the  lapse  of  five  years  from  that  date,  unless  any 
person  having  a  right  of  action  was  at  that  time  under  some  legal 
disability;  if  so,  such  person  would  have  two  years  after  the  re- 
moval of  his  disability  to  prosecute  such  action. ^^ 

An  action  is  barred  by  the  above  statute  after  the  lapse  of  five 
years  from  the  confirmation  of  the  sale,  although  the  sale  was 
absolutely  void.  As  valid  sales  require  no  protection  by  statutes 
of  limitation,  such  statutes  are  intended  to  apply  to  illegal  and 
void  sales.^^ 

The  widow  whose  interest  in  her  husband's  real  estate  has  been 
sold  by  his  administrator  is  not  barred  by  this  statute  from  recov- 
ering the  same.^* 

This  statute  protects  a  purchaser  at  an  administrator's  sale  al- 
though the  real  estate  was  so  erroneously  described  as  to  have 
rendered  the  sale  void.^^  Such  actions  are  barred  in  five  years 
though  the  sale  by  the  administrator  is  absolutely  void.^*' 

§  243.  Same — When  heirs  estopped. — An  heir  may  estop 
himself  from  questioning  the  validity  of  a  sale  made  by  the  ad- 
ministrator, even  where  the  sale  is  voidable,  by  receiving  and 
retaining  his  distributive  portion  of  the  proceeds  of  such  sale.^' 

To  create  such  estoppel,  however,  the  heir  must  receive  such 

"Walker  v.   Hill,   111   Ind.  223,   12  '^  Bumb  v.  Card,  107  Ind.  575,  8  N. 

X.  E.  387;  Wright  v.  Kleyla,  104  Ind.  E.  713;  Elliott  v.  Frakes,  71  Ind.  412; 

223,  4  X.  E.   16;   Burns'  R.   S.   1908,  State  v.  Stanley.   14  Ind.  409;  Web- 

§  298;    Davidson    v.    Bates,    111    Ind.  ster  v.  Bebinger,  70  Ind.  9;  Wilmore 

391,  12  X.  E.  687.  v.  Stetler,  137  Ind.  127,  34  N.  E.  357, 

"Fisher  v.   Bush,   133  Ind.  315,  Z2  36  X.  E.  856,  45  Am.  St.  169;  Karns 

X.  E.  924;  Irey  v.  Markey,   132  Ind.  v.   Olney,  80  Cal.  90,  22  Pac.  57,   13 

546,  Z2  X.  E.  309.  Am.   St.    101 ;   France  v.   Haynes,  67 

"Compton   V.   Pruitt,  88   Ind.   171;  Iowa  139,  25  X.  W.  98.    An  heir  who 

Kent  V.  Taggart,  68  Ind.  163.  receives    and    retains    a    part    of    the 

"Armstrong    v.     Hufty,     156    Ind.  proceeds  of  a  voidable  administrator's 

606,  55  X.  E.  443,  60  X.  E.  1080.  sale  is  estopped  to  contest  the  valid- 

"  Hampton  v.  Murphy,  45  Ind.  App.  ity  of  such  sale.     Palmerton  v.  Hoop, 

513,  86  X.  E.  436,  88  X.  E.  876.  131  Ind.  2Z,  30  X.  E.  874. 


372  INDIANA    PROBATE   LAW.  §    243 

portion  of  the  proceeds,  with  full  knowledge  of  the  fact  tliat  all 
his  estate  in  the  land  has  been  sold  on  the  petition  of  the  admin- 
istrator, and  with  such  full  knowledge  he  must  elect  to  retain  his 
share  of  the  proceeds  of  the  sale.  Equity  will  not  uphold  his 
claim  to  both  the  money  and  the  land." 

Although  an  order  obtained  by  an  administrator  to  sell  the 
widow's  interest  in  her  deceased  husband's  real  estate  is  void,  and 
a  sale  made  on  such  order  is  absolutely  \oid  and  conveys  no 
title,^°  yet  such  widow  may,  by  her  acts,  and  by  receiving  and  re- 
taining the  portion  of  the  purchase-money  derived  from  the  sale 
of  her  interest,  estop  herself  from  setting  aside  a  sale  so  made."'' 

In  a  sale  of  a  decedent's  lands  by  his  administrator,  if  the  heirs 
who  are  the  owners  of  one-third  of  the  land  subject  to  the 
widow's  life  estate,  who  is  a  childless  second  wife,  are  made 
parties  to  the  proceeding  and  join  therein,  the  entire  land  being 
sold,  and  accept  on  distribution  their  respective  shares  of  the  pro- 
ceeds of  such  sale,  they  cannot  be  heard  afterwards  to  say  that 
the  sale  of  such  one-third  was  unauthorized."^ 

The  interest  of  the  w^idow  in  her  husband's  lands  was  sold  to 
satisfy  a  purchase-money  mortgage  against  it,  and  out  of  the 
proceeds  of  the  sale  other  liens  against  the  land  other  than  for 

"Colbert  v.  Daniel,  2)2  Ala.  314;  demands  of  the  creditors  of  John  N. 
Storrs  V.  Barker,  6  Johns.  Ch.  (N.  Armstrong,  and  was  not  liable  to  be 
Y.)  166.  10  Am.  Dec.  316n ;  Bumb  v.  made  assets  for  the  payment  of  his 
Gard,  107  Ind.  575,  8  N.  E.  713;  debts;  and  the  sale  and  conveyance 
Palmerton  v.  Hoop,  131  Ind.  23,  30  of  her  share,  by  his  administrator, 
N.  E.  874;  Evans  v.  Snyder,  64  Mo.  though  made  with  her  written  con- 
516.  It  is  held  that  if  a  widow,  with  sent,  and  though  she  received  a  part 
knowledge  of  all  the  facts,  elects  to  of  the  purchase-money,  did  not  de- 
receive  the  purchase-money,  she  can-  feat  the  rights  of  the  appellants  nor 
not.  so  long,  at  least,  as  she  retains  deprive  them  of  their  inheritance, 
the  money,  successfully  dispute  the  upon  her  death,  in  and  to  her  said 
validity  of  the  sale.  Pepper  v.  Zahn-  share  of  said  real  estate."  Louden 
zinger,  94  Ind.  88;  Bumb  v.  Gard,  v.  James,  31  Ind.  69;  Longlois  v. 
107  Ind.  575.  Longlois.    48    Ind.    60;    Hendrix    v. 

"  Kent  v.  Taggart.  68  Ind.  163 ;  El-  Sampson.  70  Ind.  350. 
liott  V.  Frakes,  71  Ind.  412.    In  Arm-        ^  Pepper  v.  Zahnzinger,  94  Ind.  88. 
strong   v.    Cavitt,   78    Ind.   476,   it   is        "Myers  v.   Boyd,   144  Ind.  496,  43 

said:     "The  share  of  said  Samantha,  X.  E.  567. 
in  said  real  estate,  was  free  from  all 


§    244  DISPOSITION    OF    REAL    PROPERTY.  373 

purchase-money  were  paid  by  the  administrator.  It  was  held 
that  the  widow  was  estopped  to  question  such  payments  in  a  col- 
lateral proceeding." 

The  mere  receipt  by  her  of  the  proceeds  of  the  sale  as  her  part 
of  her  distributive  share  of  her  husband's  estate,  or  even  her 
presence  at  the  sale  without  objecting  thereto,  will  not  work  an 
estoppel  against  her.'^  If,  however,  she  receives  and  retains  her 
share  of  the  purchase-price,  after  having  consented  to  the  order 
and  sale,  she,  as  well  as  those  who  claim  through  her,  will  be 

estopped."'* 

A  voidable  sale  by  the  administrator  may  be  confirmed  by 
those  of  the  heirs  who  are  adults,  and  such  confirmation  will 
estop  them  from  afterwards  questioning  the  title  of  the  pur- 
chaser." 

There  is  no  power  in  the  court  to  authorize  the  sale  of  more 
than  the  present  interest  of  the  heirs:  so  that  they  are  not 
estopped  to  set  up  any  after-acquired  title."' 

An  heir,  who  is  also  a  creditor  of  the  estate,  and  who  holds  a 
lien  upon  the  real  estate  sold  by  the  personal  representative  of  his 
ancestor,  is  not  estopped  to  enforce  his  lien  by  reason  of  the  fact 
that  he  was  made  a  party  to  the  proceedings  to  sell  such  real 
estate,  simply  as  heir.  He  is  concluded  only  in  the  character  m 
which  he  is  sued." 

§  244.  Mortgage  and  lease  of  real  estate.— Instead  of  or- 
dering the  sale  of  real  estate  for  the  payment  of  debts  or  legacies, 
the  court  may  authorize  the  executor  or  administrator  to  mort- 
gage or  lease  such  real  estate,  or  any  part  thereof,  for  any  period 
not  longer  than  five  years,  if  it  shall  appear  that  the  money  neces- 
sary to  be  raised  can  be  procured  thereby  to  the  interest  of  the 
estate.'' 

^=  Denton  v.   Arnold,   151   Ind.    188,  Beckham    v.    Newton,    21     Ga.     187; 

51  X    E   240  Randle  v.  Carter,  62  Ala.  95. 

^Compton'v.  Pruitt,  88  Ind.  171.  =«  Flenner  v.  Travelers'  Ins.  Co..,  89 

=«Irey   v.    Mater,    134   Ind.  238,   23  Ind.  164. 

N    E    1018;   Roberts  v.  Lindley,   121  "Lord  v.  Wilcox,  99  Ind.  491. 

Ind.  56,  22  X.  E.  967.  ^  Burns'  R.  S.   1908,  §  2886. 

*Lee    V.    Gardiner,   26    Miss.    521;  . 


374  INDIANA    PROBATE    LAW.  §    244 

A  lease  or  mortgage  executed  by  the  executor  or  administrator, 
under  the  authority  of  the  court,  shall  be  as  valid  as  if  executed 
by  the  deceased  in  his  lifetime;  but  before  the  court  shall  make 
any  order  to  authorize  an  executor  or  administrator  to  execute 
such  lease  or  mortgage,  he  shall  execute  bond  in  like  manner  as 
is  required  previous  to  making  an  order  for  the  sale  of  real 
estate.-" 

It  will  be  noticed  that  our  statutes  which  authorize  an  executor 
or  administrator  to  make  assets  out  of  his  decedent's  real  estate 
for  the  payment  of  his  debts,  provide  three  modes  for  raising 
funds  for  that  purpose :  ( i  )  by  sale  of  the  land,  (2)  by  mortgag- 
ing it,  (3)  by  leasing.  An  administrator  always,  and  an  executor, 
where  no  authority  is  given  him  in  the  will,  to  do  either,  must 
first  procure  an  order  from  the  proper  court.  This  order  must  be 
based  on  a  petition,  and  in  the  proceedings  all  the  heirs,  devisees, 
and  others  interested  in  the  real  estate  should  be  made  parties.^" 
And  as  the  statute  authorizing  a  sale  of  lands  is  separate  and  dis- 
tinct from  the  one  authorizing  a  mortgaging  or  leasing  of  the 
same,  and  as  different  facts  are  required  to  be  proven  in  each 
instance,  an  executor  or  administrator,  in  a  proceeding  on  his 
petition  to  sell  lands,  cannot  procure  an  order  to  mortgage  or 
lease  such  lands,  and  an  order  made  in  such  case  is  invalid  and 
does  not  bind  the  parties  to  the  proceedings.^^ 

The  statute  of  1843^-  "po"  this  subject  was,  in  substance,  the 
same  as  the  present  one,  and  under  that  statute  the  Supreme 
Court  held  that  regular  adversary  proceedings  should  be  had,  and 
that  all  persons  interested  in  the  land  to  be  leased  or  mortgaged 
should  be  made  parties  thereto,  and  that  notice  of  the  pendency 

-'  Burns'  R.  S.  1908,  §  2887.     In  an  of  proceedings  to  mortgage  or  lease 

application     for    an    order    to    lease  lands,   such   proceedings   as    to   them 

lands    a   guardian   ad   litem   must   be  are  void.    Wetherill  v.  Harris,  67  Ind. 

appointed   for   minors.     Comparet   v.  452. 

Randall,   4   Ind.  55.     Upon   a  notice  *'  Smith  v.   Eels,  27  Ind.  .\pp.  321, 

and   application    to    sell    lands,    the  61    X.   E.   200. 

court    cannot    authorize    a    mortgage  "  Edwards  v.   Baker,   145  Ind.  281, 

or  lease  of  such  lands  without  further  44   N.    E.   467;    Martin  v.    Xeal,    125 

notice  to  the  heirs.     Martin  v.  Neal,  Ind.  547,  25  N.  E.  813. 

125  Ind.  547.  25  N.  E.  813.     If  heirs  ''  R.  S.  1843,  p.  532,  §  252. 
are  not   made  parties   to   or  notified 


§    244  DISPOSITION    OF    REAL    PROPERTY.  375 

of  such  proceedings  should  be  given  them.  Unless  such  steps 
were  taken  in  the  case,  no  vaHd  lease  or  mortgage  of  such  real 
estate  could  be  made  by  an  executor  or  administrator.^^ 

The  real  estate  descends  to  the  widow  and  heirs  on  the  death 
of  the  ancestor,  and  the  rule  is  universal  that  notice  must  be 
given  to  those  interested  in  the  real  estate,  that  they  may  be 
heard  to  controvert  the  justice  or  poHcy  of  ordering  a  sale;  and 
the  same  rule  must  apply  in  reference  to  mortgaging  or  leasing 
the  real  estate.  It  is  necessary  that  notice  be  given  to  those  in- 
terested in  the  land,  that  they  may  be  heard  and  given  an  oppor- 
tunity to  controvert  the  justice  or  policy  of  encumbering  or  leas- 
ing the  real  estate."*  It  is  safe  to  say  that  such  proceedings 
should  be  had  by  petition,  appraisement,  bond,  etc.,  as  are  had  in 
case  of  application  to  sell  real  estate  to  pay  debts,  made  by  execu- 
tors or  administrators.  And  such  lease  or  mortgage,  after  its 
execution,  should  be  reported  to  the  court  for  its  approval.  Such 
lease  or  mortgage,  when  executed,  conveys  no  greater  estate  than 
that  possessed  by  the  executor  or  administrator,  and  he,  of 
course,  takes  no  greater  estate  than  that  possessed  by  the  dece- 
dent at  the  time  of  his  death.  And  a  mortgage  made  by  an  execu- 
tor or  administrator  will  not  bind  him  personally.^" 

The  court  granting  the  order  for  the  mortgage,  lease  or  sale  of 
such  real  estate  shall  possess  the  same  power  to  compel  such 
executor  or  administrator  to  account  for  the  proceeds  thereof  as 
in  case  of  personal  estate."" 

In  the  absence  of  a  statute,  or  some  power  in  the  will,  an  ad- 

"  Piatt  V.  Dawes,  10  Ind.  60.  Hensey  in  the  land  is  not  subject  to 

"Martin  v.   Xeal,   125  Ind.  547,  25  the    mortgage    made    by    her    as    ex- 

N.     E.     813:     Woerner     Am.     Law  ecutrix   of   the   will   of   Fowler   Mc- 

Admr.  p.  1029.  Larin."     Citing   Piercy  v.   Piercy,   19 

="Burbank  v.   Dyer,    54    Ind.    392;  Ind.  467;  Leach  v.  Prebster,  39  Ind. 

Wetherill  v.  Harris.  67  Ind.  452.     In  492;    Brannon    v.    May,   42    Ind.   92 

this   case   the    court   says:     "Having  Young     v.     Pickens,     49     Ind.     23 

made   the    mortgage   as    executrix,   it  Heavenridge   v.    Nelson,  56   Ind.   90 

cannot  be  held  that  Mrs.  Hensey  is  Dale  v.  Hartley,  58  Ind.  101 ;  May  v. 

bound  personally.   *   *   *  This  course  Fletcher,  40  Ind.  575. 
of  reasoning  conducts  us  to  the  con-        ^^  Burns'  R.  S.  1908,  §  2888. 
elusion  that  the  interest  of  Maria  A. 


376  INDIANA    PROBATE    LAW.  §    245 

ministrator  or  executor  has  no  authority  to  mortgage  or  lease 
the  real  estate  of  his  decedent." 

Nor  under  the  above  statute  has  an  executor  or  administrator 
power  to  either  lease  or  mortgage  his  decedent's  real  estate  with- 
out an  order  of  the  court  to  that  effect.^** 

§  245.  Giving  bond  to  prevent  sale,  etc. — It  is  within  tlie 
power  of  those  who  own  the  real  estate  of  a  decedent  or  who 
may  be  interested  in  the  settlement  of  his  estate,  to  prevent  the 
executor  or  administrator  of  such  decedent  from  either  selling, 
mortgaging,  or  leasing,  such  real  estate.  The  statute  provides 
that  an  order  for  the  sale,  lease,  or  mortgage  of  such  real  estate 
shall  not  be  granted  if  any  of  the  persons  interested  in  such 
estate  shall  give  bond  to  the  executor  or  administrator  in  a  sum 
and  with  sureties  to  be  approved  by  the  court,  conditioned  to  pay 
all  liabilities  eventually  due  from  the  estate,  with  charges  of  ad- 
ministration, so  far  as  the  personal  estate  is  insufficient.^" 

One  interested  in  the  estate  of  a  decedent  agreed  in  writing, 
with  the  administrator  of  the  estate,  that  if  he  would  resign  his 
trust  as  such  administrator  and  relinquish  all  claims  to  property 
belonging  to  the  estate  in  the  hands  of  such  person,  that  he 
would,  as  a  consideration  therefor,  assume  and  pay  all  valid 
claims  against  the  estate  of  the  intestate.  Held,  that  a  creditor 
of  such  intestate  could  maintain  an  action  on  such  agreement.'"' 

A  compliance  with  the  above  section  of  the  statute  is  the  only 
method  known  in  our  law  to  prevent  an  order  granting  a  sale  of 
a  decedent's  real  estate  to  pay  his  debts  when  the  same  is  properly 
applied  for  by  his  executor  or  administrator."*^ 

An  heir  cannot  prevent  the  sale  of  the  real  estate  by  the  admin- 

"  Merchants'  Xat.  Bank  v.  Weeks,  "  Burns"  R.  S.  1908,  §  2889. 

53  Vt.  115,  38  Am.  Rep.  661;   Smith  '"Cross    v.    Truesdale,   28    Ind.   44. 

V.    Hutchinson,    108   111.   662;    Titter-  "In    equity    such   a   suit   was    always 

ington  V.  Hooker,  58  Mo.  593;  Grif-  maintainable    under    the     facts    dis- 

fin  V.  Johnson,  Zl  Mich.  87;   Smith-  closed  in  this  complaint,  there  being 

wick  V.  Kellj',  79  Tex.  564,  15  S.  W.  no    administrator     of     the     deceased 

486.  debtor    against    whom    the    creditor 

^  Piatt  V.  Dawes,  10  Ind.  60;  Howe  could  proceed." 

V.  Gregory,  2  Ind.  App.  477,  28  N.  E.  "  Ditton  v.  Hart,  —  Ind.  — ,  95  X. 

776.  E.  119. 


§    246  DISPOSITION    OF    REAL    PROPERTY.  377 

istrator  by  a  mere  offer  to  pay  the  debts  of  the  decedent.  Noth- 
ing less  than  the  payment  of  all  the  debts,  including  the  expense 
of  administration,  or  a  filing  of  the  bond  required  by  this  statute 
is  sufficient.  The  court  cannot  compel  such  bond  but  if  such 
bond  is  filed  and  approved  by  the  court,  that  alone  prevents  the 
sale,  and  not  the  mere  offer  to  file  a  bond.*- 

§  246.  Preventing  sale  and  barring  claims. — In  1905  a  stat- 
ute was  enacted  by  which,  upon  a  proper  petition  presented  to  the 
court  having  probate  jurisdiction,  the  court  could  make  an  order, 
conditioned  on  no  letters  of  administration  being  granted  on  an 
estate  within  a  certain  time,  by  which  any  future  administration 
upon  the  estate  was  prevented  and  all  claims  against  the  estate 
barred,  except  as  they  might  be  enforced  against  the  heirs  and 
devisees.  The  statute  is  as  follows :  That  any  one  interested  in 
any  real  estate  in  this  state,  liable  for  the  debts  of  any  decedent 
and  desirous  of  protecting  the  same  from  sale  to  make  assets  for 
the  payment  of  such  debts,  may  file  a  petition  in  any  circuit  court 
of  this  state,  authorized  to  issue  letters  of  administration  on  the 
estate  of  such  decedent,  or  with  the  clerk  thereof  in  vacation, 
setting  forth  such  facts,  giving  the  name  of  such  decedent  and 
the  date  of  his  or  her  death,  if  known,  and  if  unknown  and  by 
diligent  inquiry  cannot  be  ascertained,  alleging  such  fact,  and 
shall  also  indorse  thereon  the  time  for  hearing  such  petition, 
which  shall  not  be  less  than  thirty  days  from  such  filing. 

Upon  the  filing  of  such  petition  it  shall  be  the  duty  of  the  clerk 
of  such  court  to  give  notice  of  the  filing  of  such  petition,  its 
nature  and  object,  and  the  date  set  for  hearing  as  indorsed  on 
said  petition,  by  three  successive  weekly  publications  in  some 
newspaper  published  in  the  county  in  which  said  petition  has  been 
filed. 

Upon  the  day  fixed  for  such  hearing  the  court,  if  it  shall  ap- 
pear by  proof  that  due  notice  has  been  given,  as  provided  in  the 
preceding  section,  and  no  letters  of  administration  have  been 
issued  on  such  estate,  shall  proceed  to  hear  such  petition,  and  if 

*=  Davis   V.    Kendall,    161    Ind.   412, 
68  X.  E.  894. 


^yS  INDIANA    PROBATE    LAW.  §    247 

the  court  be  satisfied  tliat  the  material  a\ennents  thereof  are 
true,  it  shall  so  find,  and  enter  a  decree  that  if  no  letters  of  admin- 
istration be  issued  on  the  estate  of  such  decedent  for  a  period  of 
twelve  months  from  that  date,  all  claims  against  such  estate  shall 
be  barred,  except  as  now  provided  in  case  of  liabilities  of  heirs, 
devises  [devisees]  and  legatees,  but  if  it  shall  appear  that  letters 
of  administration  have  been  issued  on  the  estate  of  such  decedent, 
the  court  shall  dismiss  the  petition  and  proceed  with  the  adminis- 
tration of  such  estate  under  existin<4'  laws. 

If  the  decree  provided  in  the  preceding  section  shall  be  made 
and  no  letters  of  administration  be  issued  on  the  estate  of  such 
decedent  for  a  period  of  twelve  months  thereafter,  all  claims 
against  the  same  shall  be  barred  except  as  now  provided  in  case 
of  liabilities  of  heirs,  devises  [devisees]  and  legatees,  and  no 
letters  of  administration  shall  thereafter  be  issued  on  the  estate 
of  such  decedent. 

All  costs  of  such  proceedings  and  publicatitju  sliall  be  jxiid  by 
such  petitioner  or  petitioners.''^ 

§  247.  Conveyance  upon  title  bond,  the  statute. — \\'hen- 
ever  any  person  who  has  executed  a  title  bond  or  contract  for  the 
conveyance  of  real  estate  to  any  person,  or  corporation,  shall  die 
before  such  conveyance  is  executed,  and  shall  have  made  no  legal 
provisions,  by  will  or  otherwise,  for  the  execution  of  such  con- 
veyance, and  the  whole  or  any  part  of  the  purchase-money  be  un- 
paid at  his  death,  the  executor  or  administrator  of  such  deceased 
person  may  file  a  petition  in  the  circuit  court  of  the  county  where 
the  real  estate  or  any  part  thereof  lies,  or  where  letters  testa- 
mentary or  of  administration  are  granted,  against  the  obligee, 
vendee  or  assignee,  or  all  of  them,  as  may  be  necessary,  and  also 
the  heirs  and  devisees,  if  any.  of  the  deceased,  praying  in  such 
petition  for  the  appointment  of  a  commissioner  to  execute  a  con- 
veyance to  the  proper  holder  of  such  bond  or  contract.** 

The  court  in  such  case,  where  process  has  been  served  ten  days, 
or  publication  made,  in  case  of  nonresidence  of  the  defendants, 

"Burns'    R.    S.    1908,    §§    2890    to        "Burns'  R.   S.   1908,  §  2897. 
2894. 


§    248  DISPOSITION    OF    REAL    PROPERTY.  379 

for  thirty  days,  before  the  first  day  of  the  term,  may  appoint  a 
commissioner  to  execute  a  conveyance  in  conformity  with  the 
requisitions  of  the  title  bond  or  agreement,  and  to  report  the  con- 
veyance as  soon  as  executed,  to  the  court,  and  if  the  court  shall 
approve  the  deed,  the  same  shall  be  entered  on  record  and  deliv- 
ered to  the  executor  or  administrator.^^ 

The  executor  or  administrator  may  tender  such  deed  to  the 
person  to  whom  such  tender  should  be  made,  and  demand  pay- 
ment of  the  purchase-money  due  and  unpaid.^*' 

If,  upon  due  tender  of  the  deed,  the  person  liable  to  an  action 
for  the  recovery  of  the  purchase-money  refuse  to  pay  the  same, 
such  executor  or  administrator  may  maintain  an  action  for  the 
recovery  of  the  purchase-money  due  and  unpaid,  against  the  per- 
son thus  liable.^' 

§  248.  Same — Statute  construed. — These  statutes  apply  in 
cases  where  the  decedent  was  the  vendor,  and  provide  a  method 
for  enforcement  of  the  contract  against  the  vendee  by  putting  it 
in  the  power  of  the  executor  or  administrator  to  tender  to  such 
vendee  a  deed,  such  tender  being  necessary  to  a  recovery  of  the 
purchase-mone}-.  But  in  cases  in  which  the  decedent  is  himself 
the  vendee  and  holds  land  under  a  contract,  or  title  bond,  the 
purchase-money,  or  part  thereof  remaining  due  at  his  death,  are 
provided  for  in  other  statutes. 

Prior  to  the  enactment  of  the  above  statutes  an  executor  or 
administrator  was  without  remedy  in  such  cases  save  in  equity. 
This  resort  was  open  to  him  at  any  time,  and  the  personal  repre- 
sentative of  a  vendor,  who  had  died  without  having  conveyed, 
and  before  he  was  bound  to  convey,  had  a  right  in  a  court  of 
equity,  to  require  the  heirs  or  devisees  of  the  vendor  to  make  a 
deed  according  to  the  contract  of  sale  and  to  demand  of  the 
vendee  the  payment  of  the  purchase-money;  and  he  might  also 
enforce  the  vendor's  lien  for  the  price  of  the  land ;  or  such  court 

*"  Burns'   R.   S.   1908,  §  2898.  "'  Burns'  R.  S.  1908,  §  2900. 

♦"Burns'  R.  S.  1908,  §  2899. 


380  INDIANA    PROBATE    LAW.  §    248 

might  appoint  a  commissioner  to  make  a  deed  of  conveyance  to 
the  vendee/" 

In  tlie  case  of  Mather  v.  Sherwood,  8  Ind.  92,  the  court  sug- 
gested that  every  vendee  necessarily  contracted  with  reference  to 
the  death  of  the  vendor  before  the  title  bond  has  matured.  And 
as  a  consequence,  it  is  implied  that  he  shall,  in  such  contingency, 
accept  such  evidence  of  title  as  the  law  authorizes  the  courts  to 
make  in  lieu  of  that  which  the  death  of  the  vendor  would  render 
impossible  to  be  made.  Death  does  not  destroy  the  mutuality  of 
the  contract,  and  each  party  to  the  contract  takes  the  chance  as  to 
which  may  die  first;  and  in  the  case  of  the  death  of  either  before 
the  execution  of  the  contract,  it  should  be  executed  on  his  part 
by  his  heirs.  The  vendee  himself  will  be  allowed  a  lien  on  the 
land  for  the  purchase-money,  or  any  part  of  it,  paid  by  him,  if  the 
vendor  or  those  duly  authorized  refuse  to  convey.*" 

"It  will  be  observed  that  under  the  proceedings  authorized  by 
the  statute,  two  suits  are  necessary:  one  to  procure  a  conveyance 
by  which  a  tender  can  be  made;  a  second,  after  the  tender,  to  re- 
cover judj^ncnt  for  the  purchase-money.  Under  the  common- 
law  rcmctlv,  as  recognized  by  the  Supreme  Court,  the  whole 
matter  was  settled  in  a  single  proceeding,  to  which  all  persons 
interested  were  made  parties,  and  by  means  of  which  the  title 
was  diverted  from  the  heirs  of  the  decedent  and  transmitted  to 
tiic  purchaser  of  the  land,  while  the  latter  was  compelled  to  pay 
the  money  in  arrears.  ♦  *  *  The  courts  will  probably  hold  the 
remedy  provided  by  the  statute  to  be  cumulative  only,  and  the 
common-law  proceeding,  from  its  obvious  convenience,  will  still 
l>e  generally  employed.'*''" 

If  a  wife,  with  her  husband,  agrees  to  the  sale  of  his  lands,  her 
contract,  she  being  covert,  is  utterly  void;  and  being  void,  is  not 
susceptible  of  ratification.  Such  contract  cannot  be  specifioilly 
enforced  against  her  after  the  death  of  her  husband,  nor  can  she 

^'Lacon  v.  Mertins.  o  Atk.  1;  *•  Shirley  v.  Shirley.  7  Bbckf. 
Hurst   V.    Hensley,   7    Blackf.    (Ind.)      ^lr^d^   452. 

o7o :  Mather  v.  Sherwood.  8  Ind.  92 ;        "  Rowland's  Ex'r's  Manual,  p.  102. 
Cortner  v.  Amick.  13  Ind.  463 ;  Leslie 
V.  Slusher,  15  Ind.  166. 


§  249 


DISPOSITION    OF    REAL    PROPERTY.  38 1 


ratify  the  contract  so  as  to  bind  herself.  Nothing  short  of  a  new, 
vahd  and  binding  contract,  made  with  her  after  the  death  of  her 
husband,  upon  a  new  consideration,  can  operate  to  deprive  her  of 
her  interest  in  the  land.^^ 

§  249.    Legalizing  act. — As  has  been  shown,  a  sale  of  a  de- 
cedent's real  estate  for  tlie  payment  of  his  debts  can  only  be 
leo-ally  made  by  his  executor  or  administrator.    The  court  has  no 
authority  to  order  such  sale  by  any  other  person;  no  power  to 
appoint  a  commissioner  to  make  such  sale.     A  sale  made  by  one 
so  appointed  was  void,  and  the  bond  given  by  the  commissioner 
of  no  binding  etlect  even  as  a  common-law  obligation.    To  cure 
defects  and  legalize  sales  so  made  and  perfect  title  passed  under 
conveyances  made  by  such  commissioners,  the  legislature  in  an 
act,  in  force  March  5,  1885,  provided  that,  in  all  cases  in  which 
real  estate  belonging  to  any  decedent  has  been  sold  under  an 
order  of  any  circuit  court,  upon  the  petition  of  an  administrator 
or  executor,  for  the  payment  of  debts,  or  pursuant  to  the  pro- 
visions of  a  will,  and  the  proceedings  upon  such  petition,  and  in 
making  such  sale  and  in  the  confirmation  thereof,  and  in  making 
conveyance  to  the  purchaser,  have  been,  in  all  respects,  regular, 
except  that  the  sale  was  made  by  a  commissioner  appointed  by 
the  court,  instead  of  the  executor  or  administrator,  and  the  pro- 
ceeds of  such  sale  have  been  fully  paid  over  and  accounted  for  to 
the  proper  person  or  authority,  such  sale  shall  not  be  deemed  void 
by  reason  of  having  been  made  by  such  commissioner,  but  the 
same  is  hereby  legalized,  and  the  deed  made  in  pursuance  thereof 
shall  be  as  effectual  to  pass  title  as  if  such  sale  had  been  made  by 
the  administrator  or  executor :    Provided,  however.  That  this  act 
shall  onlv  apply  in  cases  where,  at  the  time  of  its  taking  effect, 
the  title  to  said' real  estate  would  be,  but  for  such  sale,  still  vested 
in  persons  who  were  parties  to  the  proceedings  under  which  such 
sale  was  made,  their  heirs,  devisees  or  voluntary  grantees." 

-Long  V.  Brown,  66  Ind.  160.  "Burns'  R.  S.  1908,  §  2879. 


CHAPTER    XI. 


CLAIMS  AGAINST  ESTATES. 


250.  Coinnion  law  liability  of  exec-     §268. 

utors  and  administrators. 

251.  Lien    of   the   decedent's   debts.        269. 

252.  The    order     in     which     assets        270. 

shall  be  applied. 

253.  Necessity     of     notice     of     ap-         271. 

point  men  t. 

254.  Time     and     method    of     filing         271. 

claims. 

255.  Claim  must  be  verified  by  affi-        273. 

davit. 

256.  What  claims  must  be  filed.  274. 

257.  Claims  not  due  must  be  filed.        275. 

258.  When    claims     shall    be    pre-        276. 

sented.  277. 

259.  Claims    must    be    filed    before        279: 

final  settlement. 

260.  The  statement  of  the  claim.  279. 

261.  When    estate    liable    on    cove- 

nants. 280. 

262.  Contingent  claims.  281. 

263.  Charging   estate   with    services 

rendered    decedent. 

264.  .Agreements   to   leave   property         282. 

by  will. 

265.  Disposition  of  claims  founded        293. 

on  joint  contracts. 

266.  When  decedent  is  co-surety.  284. 

267.  Duty  of  clerk  as  to  claims,  etc. 


Duty  of  executor  or  adminis- 
trator as  to  claims. 

Same — Continued. 

Effect  of  allowance  by  execu- 
tor or  administrator. 

Claim  of  executor  or  adminis- 
trator— How    allowed. 

Interested  parties  may  resist 
allowance. 

Proceedings  when  claim  not 
allowed. 

Practice  on  transfer  of  claim. 

Pleadings  on  transfer  of  claim. 

Pleading   special    defenses. 

Set-off  and  counter-claim. 

Claim  based  on  note — Attor- 
ney   fees. 

Widow  and  heirs  not  neces- 
sary parties. 

The   trial   of  claims. 

Liability  of  executors  and  ad- 
ministrators on  their  prom- 
ises. 

Form  and  effect  of  judgment 
rendered  on  claim. 

Xo  execution  on  judgment  of 
allowance. 

Proceedings  after  judgment. 


?  250.  Common-law  liability  of  executors  and  administra- 
tors.— At  common  law  an  executor  or  administrator  took  the 
same  property  in,  and  absolute  p(^ver  over,  the  personal  estate  of 
his  decedent  as  the  decedent  himself  possessed  at  the  time  of  his 
death.     And  such  executor  or  administrator  was  held  personally 

382 


§  250  CLAIMS  AGAINST  ESTATES.  383 

liable  for  the  debts  of  his  decedent  to  the  extent  of  such  personal 
property  as  was  received  by  him.  x\nd  under  the  old  forms  of 
practice  this  liability  might  be  enforced  against  such  executor  or 
administrator  in  either  law  or  chancery.  The  common-law  rule, 
however,  was  early  changed  in  this  state  by  legislative  enactment, 
in  so  far,  at  least,  as  to  require  that  claims  against  the  estate  of  a 
decedent  should  be  filed  in  the  proper  court  for  adjustment  and 
allowance.^ 

While  an  action  might  have  been  brought  on  a  claim  against 
the  executor  or  administrator  personally,  he  was  permitted  to 
show,  in  bar  of  a  judginent  against  himself  individually,  that  no 
assets  of  the  estate  had  come  to  his  hands,  or  that  they  had  all 
been  properly  administered ;  and  the  judgment  then  would  have 
been  for  the  amount  found  due,  to  be  levied  of  the  goods  of  the 
decedent  which  might  afterward  come  to  his  hands  to  be  adminis- 
tered." 

It  is  said  that  the  principal  function  of  executors  and  adminis- 
trators is  to  pay  the  debts  and  discharge  the  liabilities  of  their 
testators  and  intestates,  and  that  to  accomplish  this  purpose  they 
are  vested  with  title  to  all  the  personal  property  of  the  decedent, 
and  with  a  power  over  the  real  estate  which  is  contingent  on  the 
insufficiency  of  the  personal  property.^ 

Executors  and  administrators,  however,  are  no  longer  person- 
ally liable  for  the  debts  of  their  decedent  except  as  to  liabilities 
contracted  by  them,  and  though  such  debts  may  be  made  for  the 
benefit  of  the  estate,  yet  the  estate  is  not  liable.  It  is  often  true 
though  that  probate  courts,  in  the  exercise  of  a  proper  discretion, 
will  allow  such  officers  credit  for  disbursements  made  by  them 
in  reasonable  amounts  for  services  necessary  in  the  proper  dis- 
charge of  the  duties  imposed  upon  them.* 

'R.  S.   1838.  p.   182.  §  28.  ney;  so  for  corn  fed  to  the  stock  of 

-Wilt  V.  Bird,  7  Blackf.  (Ind.)  258.  the   estate;    for  the  terms  of  a  con- 

*  Woerner  Am.  Law  Admin.,  §  355.  tract  by  the  administrator  in  renting 

*  It  follows,  that  the  estate  is  not  lia-  the  land  of  the  estate ;  or  for  improv- 
ble  to  an  attorney  for  his  services  at  ing  the  property,  or  for  the  purchase 
the  instance  of  an  executor  or  ad-  of  other  propert}',  or  for  the  erection 
ministrator,  but  that  the  latter  is  of  a  monument  "for  the  estate,"  or 
himself  liable  in  a  suit  by  the  attor-  for   buying   horses   to    use   on   dece- 


384 


INDIANA    PROBATE    LAW 


§    251 


The  rule  is  that  if  an  executor  or  administrator  wishes  to  avoid 
a  personal  HabiUty  in  such  cases  he  must  expressly  stipulate  that 
the  estate  alone  shall  \ye  liable  and  that  creditors  shall  be  paid  uut 
of  the  estate  funds.' 

Acting  under  advice  of  counsel  is  a  protection  to  an  adminis- 
trator in  the  jierformance  of  a  duty  within  the  scope  of  his  au- 
thority, but  there  is  no  protection  for  him  wlien  he  oversteps  the 
defined  boundaries  of  tluty  and  authority.'^ 

ij  251.  Lien  of  the  decedent's  debts. — The  right  of  a  cred- 
itor to  his  just  proix)rtion  of  the  property  of  his  deceased  debtor 
vests  at  the  instant  of  such  debtor's  death.  Before  his  death  the 
creditor  had  but  a  right  of  action,  but  afterwards  his  interest  in 
such  debtor's  estate  is  the  same  as  the  interest  of  the  heirs  or 
next  of  kin  would  have  been,  had  there  been  no  debts.  The  in- 
terest of  the  creditor  is  paramount  to  the  title  of  the  heirs  and 
devisees,  and  also  to  the  will  of  the  testator;  and  is  prior  in  iK>int 
of  time  to  judgments  against  such  heirs  or  devisees  for  their  in- 
dividual debts.' 


dent's  farm,  though  he  buys  "as  ad- 
ministrator." The  same  holds  good 
in  respect  of  negotiable  paper  made, 
indorsed,  or  accepted  by  him,  al- 
though he  add  to  his  signature  his 
official  character:  and,  a  fortiori, 
where  he  gives  a  bond.  So  where 
the  executor  employs  a  salesman  to 
take  charge  of  the  stock  in  trade  be- 
longing to  the  estate,  or  a  sawyer  to 
saw  lumber.  So  where  money  is  bor- 
rowed by  pledging  property  of  the 
estate,  unless  pledged  for  the  pur- 
poses of  administration;  for  the  same 
reason,  the  estate  is  not  bound  by  the 
administrator's  agreement  to  credit  a 
note  payable  to  his  decedent  with  the 
value  of  work  done  upon  the  lands 
of  the  estate,  nor  by  his  contract  to 
extend  the  time  of  payment  of  a  note 
due  the  estate ;  nor  are  the  expenses 
incurred  by  the  administrator  in  car- 
rying on  the  business  of  the  decedent 


witiiout  authority,  the  debts  of  the 
estate;  even  if  expressly  authorized 
to  carry  on  business,  the  creditor 
must  look  to  the  executor  personally. 
Woerner    Am.    Law    Admin.,    §    356. 

"*  Studebaker  Bros.  Mfg.  Co.  v. 
Montgomery,  74  Mo.  101 ;  New  v. 
Xicoll.  73  N.  Y.  127,  29  Am.  Rep. 
Ill;  Banking  Co.  v.  Morehead,  116 
X.  Car.  413,  21  S.  E.  191. 

"Pryor  v.  Davis,  109  Ala.  117,  19 
So.  4-JO. 

'Bruch  v.  Lantz,  2  Rawle  (Pa.) 
392,  21  Am.  Dec.  458n ;  Mann  v. 
Mann,  12  Heisk.  (Tenn.)  245;  Myer 
v.  McDougal,  47  111.  278;  Morris  v. 
Movvatt,  2  Paige  (X.  Y.)  586,  22  Am. 
Dec.  661.  Creditors  may  follow  as- 
sets of  the  estate  into  the  hands  of  a 
third  person  which  such  persons  have 
been  enabled  to  obtain  by  collusion 
with  the  representatives  of  the  estate. 
Johnston    v.    Lewis,    Rich's    Eq.    (S. 


§  252  CLAIMS  AGAINST  ESTATES.  385 

In  one  case  it  is  said  ''the  only  reason  why  each  creditor  may 
not  take  what  belongs  to  him  is  because  it  is  impracticable  to 
make  a  just  distribution  without  some  delay.  The  law,  therefore, 
takes  the  goods  of  a  decedent  into  its  custody,  and  bids  the  claim- 
ants to  wait  until  their  rights  can  be  ascertained.  An  officer  of 
the  law  commits  them  to  the  care  of  an  administrator  upon  an 
express  trust  and  with  a  solemn  injunction  to  give  each  his  due. 
The  creditor  need  not  bring  suit.  The  assets  applicable  to  his 
debt  are  already  in  hands  of  a  legal  officer,  whose  duty  to  pay  it 
over  will  be  enforced  by  the  proper  authorities  without  an  action. 
All  that  he  is  recpiired  to  do  is  to  make  his  claim  within  a  given 
time.""" 

The  general  creditors  of  the  estate  have  no  lien,  in  the  com- 
monly accepted  sense  of  that  term,  upon  the  personal  property  of 
the  deceased,  although  such  property  is  the  primary  fund  from 
which  their  claims  are  to  be  paid.  As  against  specific  liens  against 
the  personal  property,  the  general  creditors  are  entitled  only  to 
such  portion  of  the  i)ersonal  property  as  would,  in  the  absence  of 
debts,  descend  to  the  heirs;  and  such  creditors  have  no  right  to 
test  the  validity  of  an  unrecorded  mortgage  upon  personal  prop- 
erty until  they  have  in  some  way  acquired  a  lien  upon  the  property 
mortgaged." 

i;  252.  The  order  in  which  assets  shall  be  applied. — While 
the  personal  estate  of  a  decedent  is  the  primary  fund  for  the  pay- 
ment of  his  debts,  all  of  his  property  is,  after  his  death,  liable  to 
be  made  assets  for  the  payment  of  his  debts;  and  such  decedent 
cannot,  by  will,  exempt  from  this  liability  any  part  of  his  property 

Car.)  40;  Worthcy  v.  Johnson,  8  Ga.  Chandler,  78  Ind.  417. 

236,  52  Am.  Dec.  399.     The  rights  of  *  McClintock's    Appeal,   29    Pa.    St. 

the  creditor  against  the  heir  may  be  360. 

lost  bv  laches.     Collamore  v.  Wilder,  "  Mayer  v.  Myers,  129  Ind.  366,  27 

19  Kan.  67;   Bishop  v.  O'Conner,  69  X.  E.   740;   Jones  Mortgages,   §  240. 

111.   431.     Creditors    must,    however.  The  fact  that  a  chattel  mortgage  is 

enforce   their   rights   to   a   decedent's  not  recorded  is  not  a  defense  that  can 

assets  by  an  administration  upon  his  be  made  by  the  administrator  or  heir 

estate.    Wilson  v.  Davis,  37  Ind.  141 ;  of  the  deceased  mortgagor  agamst  its 

McCoy  V.   Payne,  68  Ind.  327;   Carr  foreclosure. 

V.   Huette,  73  Ind.  378;   Chandler  v. 

25^Pro.  L.wv. 


386  INDIANA    PROBATE    LAW.  §    252 

to  the  prejudice  of  his  creditors.  He  may,  however,  as  against 
his  heirs,  provide  that  a  certain  portion  of  his  estate  shaU  be 
charged  v^ith  the  payment  of  his  debts  to  the  exoneration  of  the 
rest." 

For  the  payment  of  the  debts  and  Habihties  of  a  decedent,  the 
assets  of  his  estate  will  be  marshalled  in  the  following  order: 
I.  His  personal  estate,  except  such  as  may  be  by  law  exempt,  or 
which  has  been  specifically  bequeathed.  2.  The  real  estate,  if 
any,  which  may  be  by  will  set  apart  as  a  fund  for  the  payment  of 
debts.  3.  The  real  estate  which  will  pass  by  descent.  4.  The 
lands  which  have  been  specifically  devised."  The  second  and 
third  rules  change  places  where  the  estate  appropriated  by  the 
will  for  the  payment  of  the  debts  is  charged  generally  and  not 
specifically.^" 

Land  acquired  after  the  making  of  a  will,  which  descends  to 
the  heirs  at  law,  is  liable  for  the  decedent's  debts  in  preference  to 
land  specifically  devised. ^^ 

And  land  which  passes  by  descent  is  liable  for  the  debts  of  the 
estate  in  advance  of  a  specific  legacy.'^     Specific  legatees  are  en- 

'"Trunibo    v.     Sorrency,    3    T.     B.  stead     after     the     decedent's     death. 

Mon.    (Ky.)   284,   16  Am.  Dec.  103n;  Wilson    v.    Proctor,    28    :\Iinn.    13,    8 

Magruder  V.  Carroll,  4  Md.  335.     The  N.   E.  830. 

whole  of  a  decedent's  property,  both  ''Livingston  v.  Newkirk,  3  Johns, 
real  and  personal,  as  against  his  Ch.  (X.  Y.)  312;  Chase  v.  Locker- 
heirs,  is  subject  to  the  payment  of  his  man,  11  Gill  &  J.  (Md.)  185,  35  Am. 
debts    and    liabilities.      Therefore,    a  Dec.  277. 

claim    for    damages    for    breach    of  "  Stires  v.  Stires,  1  Halst.  Ch.   (N. 

covenant  in  a  deed  should  be  prose-  J.)  224.     Direction  by  testator  to  sell 

cuted   against  his   personal   represen-  lands    for   payment   of   debts,   and   if 

tative     or     filed    against     his     estate,  there   should  be  a   deficiency,  to  sell 

Hartman  v.  Lee,  30  Ind.  281 ;  Ratcliff  such     other     property     as     his     wife 

V.  Leunig,  30  Ind.  289.  should  point   out,  charges  the  wife's 

"Alexander  v.  Worthington,  5  Md.  legacj',    as    between    her    and    other 

471;    Dunbar   v.   Dunbar,  3   Vt.   472;  legatees,  but  does  not  exonerate  lands 

Alexander  v.   Waller,  6  Bush    (Ky.)  descending  cum  onere.     An  executor 

330;    Elliott   v.    Posten,   4   Jones    Eq.  is   entitled  to  the  possession  of  per- 

(N.    Car.)    433;   Whitehead    v.     Gib-  sonal    property   bequeathed   until    the 

bons,  10  N.  J.  Eq.  230.     An  adminis-  estate  is  settled.     Highnote  v.  White, 

trator   has   no  right  to  use   the  per-  G]  Ind.  596. 

sonal  assets  of  the  estate  to  make  re-  "  Alexander  v.  Worthington,  5  Md. 

pairs    or  pay  taxes   upon   the   home-  471.     Assets  may  be  partly  legal  and 


§  252  CLAIMS  AGAINST  ESTATES.  387 

titled  to  have  the  assets  which  have  descended  to  the  heir  mar- 
shalled, but  not  so  with  lands  devised,  unless  such  lands  were 
devised  subject  to  the  payment  of  the  debts  of  the  estate ;  for  as 
between  a  specific  legacy  and  a  devise,  the  former  is  first  liable 
for  the  payment  of  simple  contract  debts.^^ 

A  testator  may  by  express  devise  for  that  purpose  set  apart 
certain  lands  for  the  payment  of  his  debts,  and  when  this  is  done, 
lands  so  devised  constitute  the  primary  fund  out  of  which  the 
debts  must  be  paid  and  the  personal  property  is  exonerated. 
There  must,  however,  appear  from  the  will  an  intention  to  charge 
the  real  estate  so  as  to  exempt  the  personalty.^® 

If  the  will  directs  a  sale  of  the  real  estate  and  charges  the  pay- 
ment of  the  debts  and  legacies  upon  the  proceeds  of  the  real  and 
the  personal  estate  in  one  mass,  the  real  and  personal  estate  must 
contribute  ratably  to  the  payment  of  the  debts  and  legacies.^' 

The  charging  of  all  the  debts  against  a  particular  devise  does 
not  have  the  effect  of  releasing  the  personal  property  or  lands 
devised  to  others  from  liability  for  his  debts,  if  the  land  charged 
should  prove  insufficient  to  pay  the  debts.^* 

The  testator's  creditors  are  to  be  secured  independently  of  his 
acts,  for  the  legal  obligation  to  pay  debts  is  more  imperative  than 
the  gifts  in  the  will.  In  the  absence  of  a  testamentary  direction 
to  the  contrary,  the  rule  requires  that  debts  and  legacies  shall  be 
paid  out  of  the  personal  estate  if  it  is  sufficient,  but  a  testator  may 
order  his  debts  and  the  expenses  of  administration  to  be  paid  out 
of  his  personal  estate,  or  out  of  his  real  estate,  or  out  of  both,  ot 
out  of  any  particular  part  or  parcel  of  either.^** 

partly   equitable,   and   the    court   will  St.    505;    Reid    v.    Corrigan,    143    111. 

follow  the  rule  of  law  as  to  the  legal  402,  32  N.  E.  387;  Clark  v.  Worrall, 

assets,    but  will    direct    the    equitable  33  Ind.  App.  49,  68  N.  E.  699. 

assets   to  be  applied   ratably.     Moses  "  Cox  v.   Corkendall,   13  N.  J.  Eq. 

V.  Murgatroyd,  1  Johns.  Ch.   (N.  Y.)  138;  Elliott  v.  Carter,  9  Gratt  (Va.) 

119,  7  Am.  Dec.  478.  541. 

''Chase  v.  Lockerman,  11  Gill  &  J.  "Duncan  v.   Gainey,    108   Ind.   579, 

(Md.)  185,  35  Am.  Dec.  277;  Dugan  9  X.   E.  470. 

V.  Hollins,  11  Md.  41.  ^«  Quinby  v.  Frost,  61  Me.  77;  Fen- 

"  Marsh    v.     Marsh,     10    B.    Mon.  wick  v.  Chapman,  9  Pet.  (U.  S.)  461, 

(Ky.)  360;  Hancock  V.  Minot,  8  Pick.  9  L.   ed.   193;   Woonsocket  Inst,   for 

(Mass.)  29;  Bane  v.  Wick,  14  Ohio  Sav.  v.  Ballou,  16  R.  I.  351,  16  Atl. 


388  INDIANA    PROBATE    LAW.  §    253 

In  this  state  the  law  makes  a  decedent's  real  estate  liable  tor 
his  debts,  but  this  statutory  liability  is  not  wholly  identical  with 
the  liability  of  land  devised  charged  with  the  payment  of  debts. 
One  distinction  is  that  the  creditor  has  no  such  lien  on  the  land  in 
the  first  instance  as  he  has  where  his  debt  is  made  an  actual 
charge  against  it,  for  then  he  can  pursue  the  land  in  the  hands  of 
an  alienee;  and  also  a  difference  is  made  in  the  running  of  the 
statute  of  limitations."'^ 

Words  of  doubtful  import  in  a  will  are  not  to  be  construed  as 
exempting  the  personal  proj^erty  of  the  testator  from  the  pay- 
ment of  debts  and  legacies,  or  of  charging  them  on  his  real 
estate."^ 

If  there  are  several  tracts  of  land  charged  with  the  i)ayment  of 
legacies,  and  the  devisee  sells  them  at  dift'erent  times- to  different 
persons,  the  charge  should  be  enforced  by  laying  it  on  the  tracts 
in  the  inverse  order  of  their  alienation."- 

The  right  of  a  legatee  to  whom  any  specific  chattel  has  been 
bequeathed  to  have  it  exonerated  from  encumbrance  thereon  is 
the  same  as  that  of  a  devisee.  For  this  reason  the  direction  of 
the  testator  that  his  debts  be  paid  will  extend  to  the  disencum- 
brance  of  a  specific  bequest.-^ 

§  253.  Necessity  of  notice  of  appointment. — The  statute 
requires  the  publication  of  nofice  of  the  grant  of  letters  testa- 
mentary or  of  administration  to  executors  or  administrators. 
The  publication  of  this  notice  is  the  first  step  toward  the  satisfac- 
tion of  the  claims  against  a  decedent's  estate.  The  purpose  of  the 
notice  is  to  enable  creditors  of  the  estate  to  present  their  demands 
to  the  administrator  or  executor  or  to  the  probate  court,  as  the 
case  may  be.    The  notice  must  state  whether  the  estate  will  prob- 

144.  1  L.  R.  A.  555n;  Duncan  v.  Wal-  N.    W.    57;    Agnew    v.    Fetterman,    4 

lace,    114    Ind.    169,    16    N.    E.    137;  Pa.  St.  56,  45  Am.  Dec.  671. 

Clark  V.  Worrall,  33  Ind.  App.  49,  68  -'  Geiger  v.  Worth,  17  Ohio  St.  564 ; 

N.  E.  699.  Arnold  v.  Dean,  61  Tex.  249;  Evans 

'"Steele  v.    Steele,  64  Ala.   438,  38  v.  Beaumont,  16  Lea   (Tenn.)   713. 

Am.   Rep.   15;   Meakin  v.   Duvall,  43  "  Fessenden's    Estate,    170    Pa.    St. 

Md.   372;   2   Jarman   on   Wills,   584;  631,    33    Atl.    135;    Lovejoy   v.    Ray- 

Grotenkemper  v.  Bryson,  79  Ky.  353 ;  mond,  58  Vt.  509,  2  Atl.  156. 

Gates  V,    Shugrue,   35   Minn.   392,  29  ''  Woerner  Am.  Law  Admin.,  §  494. 


I    2^4  CLAIMS    AGAINST    ESTATES.  3^9 

ably  be  solvent  or  insolvent.  The  statute  is  as  follows :  Every 
executor  or  administrator,  within  thirty  days  after  his  appoint- 
ment, shall  give  notice  thereof  by  publication,  three  weeks  suc- 
cessively, in  some  newspaper  printed  and  published  in  the  county, 
if  any  there  be ;  and  if  not,  by  publishing  the  same  in  some  news- 
paper printed  and  published  nearest  thereto;  and  such  notice 
shall  state  whether  the  estate  is  probably  solvent  or  insolvent.  A 
copy  of  such  notice,  with  proof  of  such  publication  and  dates, 
shall  be  filed  by  the  executor  or  administrator  with  the  proper 
clerk,  within  thirty  days  after  the  publication  is  complete.-' 

One  of  the  principal  purposes  of  this  statute  is  to  fix  a  time 
from  which  the  right  to  file  claims  against  an  estate  begins  to 

run.-^ 

Though  the  publication  of  this  notice  does  not  affect  the  gen- 
eral statute  of  limitations,  yet  it  does  raise  a  special  bar  in  favor 
of  the  estate.  If  claims  are  not  filed  within  a  year  after  the  giv- 
ing of  such  notice,  and  the  estate  is  finally  closed  at  the  end  of  the 
year,  so  far  as  the  administration  is  concerned,  such  claims  are 
barred.-*^ 

^  254.  Time  and  method  of  filing  claims.— Xo  action  shall 
be  brought  by  complaint  or  summons  against  the  executor  or  ad- 
ministrator of  an  estate  for  the  recovery  of  any  claim  against  the 
decedent,  but  the  holder  thereof,  whether  such  claim  be  due  or 
not,  shall  file  a  succinct  and  definite  statement  thereof  in  the  office 
of  the  clerk  of  the  court  in  which  the  estate  is  pending;  any  claim 
of  the  executor  or  administrator  against  the  decedent  shall  be 
made  out  and  filed  in  the  office  of  the  clerk  of  the  court  in  which 
the  estate  is  pending;  if  any  claim  against  the  decedent  be 
founded  upon  any  written  instrument,  alleged  to  have  been  exe- 
cuted by  him,  the  original,  or  a  complete  copy  thereof  shall  be 
filed  with  the  statement ;  the  statement  shall  set  forth  all  credits 
and  deductions  to  which  the  estate  is  entitled,  and  shall  be  accom- 
panied by  the  affidavit  of  the  claimant,  his  agent  or  attorney,  that 

=*  Burns'  R    S.  1908,  §  2776.  X.   E.   1125;   St.  Joseph  County  Sav. 

=^  Floyd  V.  J^liller,  61   Ind.  224.  Bank  v.  Randall,  37  Ind.  App.  402,  76 

=»Stults  V.   Forst,   135   Ind.  297.  34     X.   E.   1012. 


390  INDIANA  PROBATE  LAW.  §  254 

the  claim,  after  deducting  all  credits,  set-offs  and  deductions  to 
which  the  estate  is  entitled,  is  justly  due  and  wholly  unpaid.  And 
no  claim  shall  be  received  unless  accompanied  by  such  affidavit; 
if  the  claim  be  secured  by  a  lien  on  any  real  or  personal  property, 
such  lien  shall  be  particularly  set  forth  in  such  statement  and  a 
reference  given  to  where  the  Hen,  if  of  record,  will  be  found ;  if 
such  claim  be  filed  after  the  expiration  of  one  year  from  the 
giving  of  notice  by  the  executor  or  administrator  of  his  appoint- 
ment, it  shall  be  prosecuted  solely  at  the  cost  of  the  claimant,  and 
if  not  filed  at  least  thirty  days  before  final  settlement  of  the 
estate,  it  shall  be  barred,  except  as  hereinafter  provided  in  case  of 
liabilities  of  heirs,  devisees  and  legatees.-' 

Claims  must  be  filed  to  participate  in  the  personal  assets  of  the 
estate,  but  such  debts  as  are  liens  against  the  real  estate  continue 
as  liens  unless  discharged  by  decree  or  payment."* 

It  was  held  that  the  object  of  this  statute  was  not  to  change 
the  remedy  the  law  gave  the  creditor,  but  to  secure  a  preference 
in  the  payment  of  his  debt  over  claims  of  less  dignity,  and  to  pro- 
tect the  administrator  or  executor  against  the  consequences  of 
first  paying  debts  of  a  lower  degree.-" 

Immediately  upon  the  filing  of  a  claim  against  an  estate,  the 
clerk  shall  enter  the  same  in  the  claim  docket  of  the  estate  under 
the  appropriate  headings;  and  if  the  same,  as  shown  by  the  state- 
ment thereof,  be  secured  by  a  lien,  the  clerk  shall  briefly  note  the 
kind  of  lien  upon  such  docket.  The  filing  of  the  claim,  and  entry 
thereof  upon  the  claim  docket,  shall  be  deemed  the  commence- 
ment of  the  action  upon  such  claim,  and  shall  be  all  the  notice 
necessary  to  be  given  to  the  executor  or  administrator  of  the 
pendency  of  the  action.^'' 

=' Burns'  R.   S.   1908,   §  2828.  ^  Phipps     v.     Addison,     7     Blackf. 

=^  Beach   v.    Bell,    139   Ind.    167,   38  (Ind.)   375. 

N.  E.  819.    It  is  held  in  this  case  that  '"  Burns'    R.    S.    1908,    §    2836.      A 

where  a  person  has  a  specific  lien  on  summons  upon  a  simple  claim  is  not 

real  estate  he  can  either  file  his  claim  under    this    statute    required    to    be 

therefor  against  the  decedent's  estate,  issued.      The    filing  and    entry  being 

or  he  may  enforce  such  lien  against  notice  sufficient.     Noble  v.  McGinnis, 

the  land  after  final  settlement  of  the  55  Ind.  528. 
estate. 


g    ^^-  CLAIMS    AGAINST    ESTATES.  39^ 

The  filing  of  a  claim,  and  its  entry  upon  the  claim  docket  by 
the  clerk  of  the  court  wherein  an  estate  is  pending  for  settlement, 
is  all  the  notice  required  to  be  given  of  the  pendency  of  such 
claim  against  an  estate.  The  executor  or  administrator  of  such 
estate  is  bound  to  take  notice  of  such  filing.'' 

It  is  not  necessary  to  issue  a  summons  upon  a  claim  when  filed, 
nor  to  formally  make  the  administrator  or  executor  a  party  de- 
fendant thereto:  when  the  claim  has  been  filed  and  entered  upon 
the  docket,  the  action  has  been  commenced  and  the  executor  or 
administrator  is  a  party  thereto  by  operation  of  law.=^^ 

No  demand  is  necessary  before  filing  a  clami.  The  fihng  is 
itself  a  sufficient  demand  upon  the  executor  or  administrator.'^ 

Where  a  final  settlement  is  set  aside  and  the  estate  reopened, 
claims  may  be  filed  the  same  as  if  no  such  settlement  had  been 
made.'* 

§  255.  Claim  must  be  verified  by  affidavit.— The  rule  is  a 
general  one  that  all  claims  and  demands  against  an  estate  of  a 
decedent,  which  can  be  asserted  against  the  executor  or  admmis- 
trator  of  such  estate,  must  be  authenticated  by  the  affidavit  of  the 
creditor  before  thev  can  be  allowed  against  the  estate.'^ 

A  claim  against  a  decedent's  estate,  when  filed,  is  required  to 
be  verified  bv  affidavit.  This  has  been  the  law  in  this  state  by 
statutory  enactment  since  the  act  of  February  20,  1855,  but  later 
statutes,"  while  still  requiring  the  claim  to  be  verified,  have  enacted 
different  penalties  for  a  failure  to  attach  the  statutory  affidavit 
The  act  of  1855  provided  that  in  the  absence  of  such  affidavit 
"no  costs  shall  be  recovered  by  the  claimant."  But  it  was  held 
that  this  did  not  entitle  the  estate,  against  which  the  claim  was 
filed,  to  a  judgment  for  the  costs.     It  simply  left  the  parties,  re- 

-  Campbell  v.  Lindley,  17  Ind.  280 ;         ^  Chicago  &c.  R.  Co    v^  Harshman. 
Campbell   v.   Lindley,     18    Ind.    234;     21  Ind    App.  23,  51  N.  K  343. 

''^.^'XZ.,   1  Ind.  App.     Zr'  14  Ark.  246;   PuckeU  v.  Mc 
339    27%:    E    511         '  Call,  30  Tex.  457;  Hahnlm's  Appeal 

-Woods  V.'  Matlock,   19  Ind.  App.     45    Pa.    St.   343;    Curry  v.   Bryant,  7 
364.  48  X.  E.  384.  Bush.   (Ky.)   301. 


392  INDIANA    PROBATE    LAW,  §    255 

spectively,  liable  to  pay  their  own  costs.^"  Such  affidavit  was  not 
absolutely  essential  to  the  validity  of  the  claim,  and  was  sufficient 
if  it  was  in  substantial  compliance  with  the  form  required  by  the 
statute,  and  need  not  follow  its  literal  wording.^^  And  a  claim 
filed  without  the  affidavit  attached  might  afterwards  be  amended 
by  being  sworn  to,  but  would  not  then  carry  costs  generally."''^ 

The  statute  of  1881,  section  2310,  prior  to  its  amendment  by 
the  act  of  March  7,  1883,  provided  that  the  affidavit  should  be 
filed  by  the  claimant,  his  agent  or  attorney,  but  it  does  not  pro- 
vide that  the  relationship  of  the  affiant  shall  be  stated  in  the  affi- 
davit. The  object  of  this  statute  is  to  secure  a  verification  of  the 
claim.  The  language  of  the  provisions  of  this  statute  relative  to 
such  verification  and  the  penalty  for  a  failure  to  attach  such  affi- 
davit to  the  claim  when  filed,  is  imperative  and  is  unusually 
strong.  It  expresses  a  command  that  the  claim  should  be  verified 
"when  filed,"  and  the  penalty  prescribed  for  a  disobedience  of 
this  command  is  that  the  claimant  shall  be  "bound  for  all  costs  in 
the  prosecution  of  the  claim."  There  is  no  room  for  construc- 
tion and  there  is  but  one  meaning  that  can  be  assigned  to  the 
language  of  the  statute,  and  that  meaning  is,  that  the  claim  must 
be  verified  "when  filed,"  or  "all  costs  of  prosecuting  the  claim" 
must  be  paid  by  the  claimant.  The  provision  does  not,  as  those 
of  former  statutes  did,  prohibit  the  claimant  from  recovering 
costs,  but  it  declares  that  he  shall  pay  costs.  Nor  does  it  stop 
short  of  all  the  costs,  for  the  language  is  as  comprehensive  as 
could  well  be  employed.  The  decisions  made  under  former  stat- 
utes cannot  be  accepted  as  guides  under  the  provisions  of  this,  for 
the  reason  that  its  terms  are  essentially  different. ■'*'■* 

This  statute  was  amended  in  1883  to  read  as  at  present  set  out 
in  this  section,  and,  while  it  still  provides  that  all  claims  filed 
against  the  estate  of  a  decedent  shall  be  verified  by  affidavit,  it  is 
silent  as  to  the  question  of  costs,  but  as  it  provides  that  no  claim 

''  Walters  v.  Hutchins,  29  Ind.  136 ;  Denman,   48    Ind.   65. 

Hannum  v.  Curtis,  13  Ind.  206 ;  Story  "^  Anderson     v.     Greensburgh    Tpk. 

V.  Story,  32  Ind.   137.  Co.,  48  Ind.  467. 

"  Hannum   v.    Curtis,   13   Ind.   206 ;  ''  Hanna  v.  Fisher,  95  Ind.  383. 
Story  V.  Story,  32  Ind.  137 ;  Smith  v. 


§  255  CLAIMS  AGAINST  ESTATES.  393 

shall  be  received  for  filing  unless  it  is  verified,  it  accomplishes 
practically  the  same  end  as  before  its  amendment.  It  goes  farther 
than  former  statutes  did  and  makes  the  affidavit  of  the  claimant, 
his  agent  or  attorney,  a  prerecjuisite  to  the  filing  of  a  claim.  The 
language  of  the  statute  at  present  is,  that  "No  claim  shall  be  re- 
ceived unless  accompanied  by  such  affidavit."  This  makes  a 
material  change  in  the  law  as  established  by  the  line  of  decisions 
above  referred  to,  and  makes  the  affidavit  essential  to  the  valid- 
ity of  a  claim.*** 

Where  a  claim  has  been  properly  authenticated  and  filed,  the 
failure  to  verify  any  additional  paragraphs  afterward  filed  with 
the  clerk  of  the  court,  is  only  an  immaterial  error.  The  court  has 
taken  jurisdiction  of  the  claim  upon  the  original  paragraph  which 
was  duly  verified.*^ 

The  affidavit  attached  need  not  be  in  the  exact  words  of  the 
statute,  but  must  be  in  substance  the  same.'*" 

A  claim  which  has  been  properly  verified  is  prima  facie  gen- 
uine, and  the  burden  of  proving  the  contrary  is  on  those  who 
dispute  the  claim. '*^ 

*°  When  a  claim  is  verified  by  some  Ind.    137;    Smith  v.   Denman,  48  Ind. 

person   other   than   the   claimant,   the  65 ;   Brown   v.    Sullivan,   3   Ind.   App. 

affidavit    need    not    show    that    such  211,   29   N.    E.   453.     A    statement    in 

person  was  the  agent  or  attorney  of  the     affidavit     attached     to     a     claim 

the    claimant.      Hanna    v.    Fisher,   95  filed  against  an  estate,  "that  no  pay- 

Ind.  383.  ments    have   been    made    thereon    ex- 

"  Taggart  v.  Tcvanny,  1  Ind.  App.  cept  the  credits  therein  given,  and 
339,  27  X.  E.  511.  Where  a  second  there  are  no  set-ofifs  against  the  same 
paragraph  of  complaint  against  an  to  the  affiant's  knowledge,"  is  equiv- 
estate  is  filed  in  open  court,  after  alent  to  setting  forth  "all  credits  and 
leave  obtained,  the  failure  to  verify  deductions  to  which  the  estate  is  en- 
it,  is  an  immaterial  error  if  the  first  titled;"  and  the  statement  that  the 
paragraph  has  been  duly  verified,  balance  shown  "is  now  justly  due 
The  claimant  against  an  estate  is  en-  and  owing,"  is  the  equivalent  of 
titled  to  recover  his  costs,  if  he  is  saying  that  it  "is  justly  due  and 
successful  in  establishing  his  claim,  wholly  unpaid."  Taggart  v.  Tevan- 
notwithstanding  the  fact  that  by  n\',  1  Ind.  App.  339,  27  N.  E.  511. 
leave  of  court  he  has  filed  a  second  "Valentine  v.  Valentine,  4  Redf. 
paragraph  of  complaint  which  is  un-  (X.  Y.)  265.  The  fact  that  an  affi- 
verified.  davit  attached  to  a  claim  filed  against 

"  Sheeks    v.    Pillion,    3    Ind.    App.  an    estate    by    an    administrator  was 

262,  29  X.  E.  786;  Story  v.  Story,  32  made  in  an  adjoining  state  and  recited 


294  INDIANA    PROBATE    LAW.  §    256 

Where  a  claim  has  been  disallowed  and  has  been  transferred  to 
the  issue  docket  and  an  amended  complaint  filed,  no  new  affidavit 
need  be  made  to  such  claim." 

If  a  claim  has  been  filed  and  allowed  in  good  faith  without 
having  been  verified  by  affidavit,  the  payment  of  it  probably  could 
not  be  escaped  on  that  account." 

§  256.  What  claims  must  be  filed. — All  claims  against  the 
estate  of  a  decedent,  whether  contingent  or  absolute,  have  to  be 
filed  against  such  estate  in  the  proper  court,  and  the  filing  of  such 
claim  constitutes  a  sufficient  demand  against  the  administrator  or 
executor.  A  more  formal  demand  would  be  a  useless  cere- 
mony." This  rule  of  law  is  in  direct  conflict  with  the  one  on 
this  point  adopted  by  the  court  in  the  case  of  Hannum  v.  Curtis, 
13  Ind.  206,  and  to  the  extent  of  such  conflict  that  case  is  ex- 
pressly overruled. 

This  statute  applies  to  claims  against  an  estate  originating  after 
as  well  as  before  the  death  of  the  decedent.''  The  statute  also 
requires  that  all  claims  shall  be  filed  within  one  year  after  giving 
the  notice  of  appointment  of  an  executor  or  administrator,  or 
before  a  final  settlement  of  the  estate  is  made  by  the  executor  or 
administrator. ■**  It  makes  no  difference  whether  the  claim  is  due 
or  not,  for  the  statute  makes  ample  provisions  for  the  filing  and 
collecting  of  the  claims,  due  or  not,  against  decedents'  estates. 
And  when  a  claim  has  been  brought  within  the  provisions  of  the 

that  the  claimant's  decedent  was  late  estates,  and  the  remedy  there  pro- 
of said  county,  did  not  estahlish  in  the  vided  must  be  pursued.  All  claims, 
Supreme  Court  the  fact  that  the  claim-  whether  due  or  not,  must  be  filed  in 
ant  was  a  nonresident  administrator,  tlie  office  of  the  clerk  of  the  court  in 
Davis  V.  Huston,  84  Ind.  272.  which  the  estate  is  pending." 

**  Pence    v.    Young,    22    Ind.    App.  ■"  Scott  v.  Dailey,  89  Ind.  477. 

427,  53  N.   E.   1060.  '"Bell  v.  Lewis,  44  Ind.  129;  Stults 

«  Consolidated  Nat.  Bank  v.  Hayes,  v.  Forst,  135  Ind.  297,  34  N.  E.  1125. 

112  Cal.  75,  44  Pac.  469.  In    this    last    case    it   is    said:     "One 

*«  Wright    V.    Jordan,    71     Ind.     1 ;  who,    without    excuse    by    reason    of 

Trimble  v.  Pollock,  77  Ind.  576.     In  some  statutory  disability,  fails  to  file 

Stults  V.   Forst,   135   Ind.  297,  34  N.  his    claim    against    decedent's    estate 

E.    1125,    the    court   says:     "The    de-  before   final   settlement,   is  barred  of 

cedent's  estates  act  provides  specially  any  right  of  action  against  the  heirs." 
for   the   collection    of   claims    against 


256 


CLAIMS    AGAINST    ESTATES. 


395 


statute  and  has  been  properly  filed,  final  settlement  of  the  estate 
will  be  postponed  so  long  as  that,  or  any  other  claim  so  filed  re- 
mains unsettled.*'  No  final  settlement  of  an  estate  can  be  law- 
fully made  while  claims  filed  against  it  remain  pending  and  un- 
disposed of,  or  unless  provision  for  their  payment  has  been  made 
according  to  the  terms  of  section  2923,  Burns'  R.  S.  1908.''' 

The  statute  now  forbids  the  bringing  of  an  action  in  the  ordi- 
nary form  against  an  executor  or  administrator,  either  person- 
ally or  in  his  representative  capacity,  on  a  claim  due  from  his  de- 
cedent and  all  claims  against  a  decedent's  estate  not  filed  as  re- 
quired bv  this  statute,  unless  the  claim  falls  within  the  exceptions 
noted  at  section  2965,  Burns'  R.  S.  1908,  are  barred.  There  is 
now  no  other  method  of  conferring  upon  a  court  jurisdiction  ot 
such  claims,  except  they  be  filed  and  placed  by  the  clerk  upon  the 
appearance  docket,  and  if  not  allowed  they  must  be  transferred  to 
the  issue  docket  for  trial.'' 

A  husband  cannot  maintain  a  claim  against  the  estate  ot  his 
deceased  wife  for  money  paid  by  him,  prior  to  the  marriage,  upon 


^■•Cincinnati  &c.  R.  Co.  v.  Heaston, 

43  Ind.  172. 

'"Reed  V.  Reed,  44  Ind.  429;  Hea- 

ton  V.  Knowlton,  65  Ind.  255;  Stults 

V.  Forst,  135  Ind.  297,  34  N.  E.  1125. 
'"Ratcliff   V.    Leunig,    30    Ind.    289; 

Hyatt  V.  Mavity,  34  Ind.  415;   Stan- 
ford V.    Stanford,  42   Ind.  485;   No- 

tle    V.    McGinnis,    55    Ind.    528.      No 
demand     is    necessary    before    filing 

a  claim  against  the  estate  of  a 
decedent.  Trimble  v.  Pollock,  11 
Ind.  576;  Walker  v.  Heller,  104  Ind. 
377  3  N.  E.  114;  Armacost  v.  Lind- 
le"y,'  116  Ind.  295,  19  N.  E.  138.  A 
claim  filed  must  be  sufficient  to  show 
a  prima  facie  liability  on  the  part  of 
the  estate.  Windell  v.  Hudson,  102 
Ind.  521,  2  N.  E.  303;  Culver  v. 
Yundt,  112  Ind.  401,  14  N.  E.  91; 
Thomas  v.  Merry,  113  Ind.  83,  15  N. 
E.  244;  State  v.  Edwards,  11  Ind. 
App.  226,  38  N.  E.  544.    If  a  claim  is 


just  and  owing  it  may  be  allowed  if 
it  is  not  in  an  itemized  form.     Lan- 
caster V.  Gould,  46  Ind.  397.     Where 
the    record    does    not    show   the    date 
at  which   an   administrator   gave   no- 
tice of  his  appointment,  an  argument 
based    upon    the    assumption    that    a 
claim  was  not  filed  within  the  statu- 
tory  period,   will   not   be   considered. 
Dillman  v.   Barber,   114  Ind.  403,    16 
X.  E.  825.     A  claim  not  filed  within 
thirty  days  before  final  settlement  of 
the    estate    is    barred,    and    the    fact 
that  it  is  on  file  before  the  final  set- 
tlement report  is  approved,  does  not 
delay     the     settlement.       Roberts     v. 
Spencer,   112  Ind.  81,   13   N.  E.   127; 
Roberts   v.    Spencer,    112   Ind.   85,   13 
X     E     129;    Schrichte  v.    Stites,    127 
Ind   472   26  X.  E.  V,  1009;  Huffman 
V.  Wyrick.  5  Ind.  App.  183,  31  N.  E. 
823. 


396  IXDIANA  PROBATE  LAW.  §  257 

her  indebtedness,  and  in  the  absence  of  evidence  it  will  be  pre- 
sumed that  money  paid  by  him  after  marriage  upon  her  indebted- 
ness was  paid  as  an  advancement  to  her/- 

No  claims  need  be  filed  for  taxes.  Taxes  are  not  claims  which 
the  law  either  requires  or  intends  shall  be  tiled  against  the  estate 
of  a  decedent.  The  duty  rests  upon  the  executor  or  adminis- 
trator to  pay  all  taxes." 

Where  a  husband  and  wife  executed  a  mortgage  jointly,  the 
death  of  the  husband  will  make  the  claim  several  for  the  purpose 
of  enforcing  it  against  his  estate.'"* 

S  257.  Claims  not  due  must  be  filed. — The  death  of  a 
debtor  does  not  of  itself  mature  debts  of  his  outstanding  which 
are  not  due.  but  in  the  interest  of  the  settlement  of  his  estate, 
and  that  his  executor  or  administrator  may  have  official  knowl- 
edge of  all  the  indebtedness,  the  statute  requires  that  all  claims 
against  a  decedent's  estate,  whether  due  or  not  shall  be  filed  in 
the  proper  court  for  allowance  and  collection ;  and  where  a  claim 
is  not  due,  the  tinal  settlement  of  the  estate  may  be  postponed 
until  such  claim  becomes  due.  But  if  any  person  interested  in 
such  estate  shall  execute  bond,  with  penalty  and  surety  to  the 
acceptance  of  a  creditor  whose  claim  is  not  due,  for  the  payment 
thereof  when  it  shall  fall  due.  if  the  same  shall  prove  to  be  a  legal 
demand,  the  court,  on  such  bond  being  delivered  and  accepted 
and  a  statement  thereof,  subscribed  by  such  creditor,  filed  in  such 
court,  shall  direct  a  minute  thereof  to  be  made  on  its  order  book, 
and  the  estate  of  the  deceased  to  be  discharged  from  further  lia- 
bility touching  it.'^"' 

If  such  person  fail  to  pay  such  claim  when  it  shall  be  due,  such 

'-  Gosnell  V.  Jones,  152  Ind.  638,  53  •''  Foster    v.    Honan,    22    Ind.    App. 

N.  E.  381.  252.  53  N.  E.  667. 

''  Cullop     V.     Vincennes,     34     Ind.  '-'  Burns'  R.  S.  1908,  §  2833.    Claims 

App.  667,  72   N.   E.    166;   Graham  v.  not   due   should  be   filed   against   the 

Russell,   152  Ind.  186,  52  N.  E.  806;  estate  as  are  other  claims.    Cincinnati 

Gallup   V.   Schmidt.   154   Ind.   196,   56  Sec.  R.   Co.  v.   Heaston,  43  Ind.   172; 

N.  E.  443.  Maddox  v.  Maddox,  97  Ind.  537. 


§  258  CLAIMS  AGAINST  ESTATES.  397 

creditor  may  maintain  a  suit  on  such  bond,  and  the  person  execut- 
ing the  same  may  show  any  matter  of  vahd  defense. ="" 

*!\  failure  to  file  a  claim,  whether  due  or  not,  before  final  settle- 
ment of  the  estate,  bars  the  creditor  from  enforcing  his  claim 
against  either  the  estate  or  the  heirs  and  devisees  of  the  deceased 
debtor,  although  they  may  have  received  property  from  such  de- 
cedent."' 

§  258.  When  claims  shall  be  presented.— As  a  rule  a  time 
is  fixed  within  which  a  claim  must  be  presented  to  an  executor  or 
administrator;  and  its  presentation  in  due  form  as  required  by 
the  statute  is  essential  to  entitle  the  creditor  to  maintain  his  ac- 
tion against  the  estate."'* 

And  a  failure  of  a  creditor,  who  is  not  excused  by  some  statu- 
tory disability,  to  present  his  claim  within  the  prescribed  time, 
will  debar  him  of  any  right  of  action  on  such  claim,  not  only 
against  the  estate,  but  against  the  heirs  of  such  estate  who  may 
have  inherited  property  therefrom.'" 

Such  failure  on  the  part  of  the  creditor  does  not  usually  work 
an  extinguishment  or  forfeiture  of  his  debt,  but  furnishes  to 
those  adversely  interested  grounds  of  defense  against  his  claim, 
which  they  may  plead  or  waive."" 

^"  Burns'  R.  S.  1908,  §  2834.  a  claim  was  not  filed  within  the  stat- 

"  Cincinnati  &c.  R.  Co.  v.  Heaston,  utory  period,  will  not  be  considered. 

43  Ind    172;  Sheeks  v.  Fillion,  3  Ind.  Dillman   v.   Barber,   114  Ind.  403,   16 

App.  262,  29  N.  E.  786.  X-  E.  825.     For  facts  held  to  be  in- 

^"Ratcl'iff    V.    Leunig,   30    Ind.   289;  sufficient    to    excuse    a    claimant    for 

Eustace  v.  Jahns,  38  Cal.  3;  Hudson  not  filing  his  claim  against  an  estate, 

V.   Breeding,   7   Ark.  445;   Walker   v.  so  as  to  relieve  him  from  the  provi- 

Diehl,  79  iTl.  473 ;   Robertson  v.   De-  sions  of  the  statute  under  which  such 

moss '  23   Miss.  298 ;    Stults  v.   Forst,  claim  is  barred,  see  Roberts  v.  Spen- 

135  Ind.  297,  34  N.  E.  1125.  cer,  112  Ind.  85,  13  N.  E.  129. 

^"Cincinnati  &c.  R.  Co.  v.  Heaston,  ™  Whitmore  v.   San  Francisco   Sav. 

43    Ind     172;    Pratt    v.    Lamson,    128  Union,     50     Cal.     145;     Brownell     v. 

Mass.  528;  Ticknor  v.  Harris,  14  N.  Williams,  54  Iowa  353,  6  N.  W.  530; 

H    272    40  Am.   Dec.    186;    Stults   v.  Brown  v.  Porter,  7  Humph.   (Tenn.) 

Forst,   135   Ind.   297,  34  N.   E.   1125.  27Z;   Judy  v.   Kelley.   11    111.  211,   50 

Where  the  record  does  not  show  the  Am.   Dec.   455 ;    Shurbun  v.   Hooper, 

date  at  which  an  administrator  gave  40    Mich.    503;    Dawes    v.    Shed,    15 

notice   of   his   appointment,  an   argu-  Mass.  6,  8  Am.   Dec.  80.     The   fact 

ment  based  upon  the  assumption  that  that  a  claimant  against  a  decedent's 


3q8  INDIANA    PROBATE    LAW.  ^    255- 

And  such  defense,  to  be  available,  must  be  urged  in  the  trial 
court,  and  cannot,  for  the  first  time,  be  raised  in  an  appellate 

court."' 

In  this  state  a  claim  may  be  filed  at  any  time  after  notice  of 
his  appointment  has  been  given  by  an  executor  or  administrator, 
and  until  within  thirty  days  before  the  filing  of  his  final  report 
by  such  executor  or  administrator,  otherwise  such  claim  shall  be 
barred.  But  if  a  claim  is  not  filed  within  one  year  from  the  pub- 
lication of  such  notice  of  appointment,  "it  shall  be  prosecuted 
solely  at  the  cost  of  the  claimant."*"' 

The  proper  filing  of  a  duly  authenticated  claim  is  all  that  is  re- 
quired of  a  creditor.  His  claim  has  then  been  presented  to  the 
executor  or  administrator  for  consideration.  The  statute  then 
makes  it  the  duty  of  the  executor  or  administrator  to  examine 
the  claim  and  allowance  docket  in  the  proper  court  for  claims 
filed  against  the  estate  he  represents,  and  all  claims  which  have 
been  filed  for  more  than  thirty  days  it  is  his  duty  to  allow  or  dis- 


estate  knew  of  a  sale  or  transfer  of 
the  property  of  the  estate  to  persons 
who  knew  of  his  claim,  will  not  es- 
top him  from  asserting  his  claim 
against  the  estate  and  against  the 
property  thus  transferred,  although 
he  delayed  the  bringing  of  his  action 
for  several  years.  Smith  v.  McDon- 
ald, 3  Ind.  App.  49,  28  N.  E.  994.  In 
a  proceeding  upon  a  claim  against  a 
decedent's  estate,  an  answer  was  in- 
sufficient which  showed  the  filing  and 
pendency  of  the  final  settlement  ac- 
count of  the  administratrix  before 
the  filing  of  the  plaintifif's  claim,  but 
which  failed  to  show  that  the  ac- 
count for  final  settlement  was  filed 
after  one  year  had  expired  from  the 
time  of  giving  notice  by  the  adminis- 
tratrix of  her  appointment.  Shirley 
V.  Thompson,  123  Ind.  454,  24  N.  E. 
253;  Jackson  v.  Butts,  5  Ind.  App. 
384,  32  N.  E.  96. 


"'Hardin  v.  Crist,  7  Ind.  167; 
Drake  v.  Foster,  52  Cal.  225. 

"'A  claim  not  filed  within  thirty 
days  before  final  settlement  of  the  es- 
tate is  barred,  and  the  fact  that  it  is  on 
file  before  the  final  settlement  report 
is  approved  does  not  delay  the  settle- 
ment. Roberts  v.  Spencer,  112  Ind. 
81,  13  N.  E.  127;  Roberts  v.  Spen- 
cer, 112  Ind.  85,  13  N.  E.  129; 
Schrichte  v.  Stites,  127  Ind.  472,  26 
X.  E.  n,  1009;  Huffman  v.  Wyrick, 
5  Ind.  App.  183,  31  N.  E.  823.  A 
judgment  creditor,  by  filing  a  claim 
against  the  estate  of  the  deceased 
debtor  for  the  unpaid  balance  of  his 
judgment  and  procuring  it  to  be  al- 
lowed, does  not  release  his  lien  or 
waive  his  right  to  enforce  the  origi- 
nal judgment  by  a  resale  of  land 
after  the  previous  sale  has  been  va- 
cated by  redemption.  Green  v.  Stobo, 
118  Ind'.  332,  20  N.  E.  850. 


§  259  CLAIMS  AGAINST  ESTATES.  399 

allow  by  a  written  entry  on  such  docket  opposite  the  particular 
claim. ''^ 

§  259.  Claims  must  be  filed  before  final  settlement. — The 
pendency  of  a  single  claim  may  involve  the  solvency  or  insolvency 
of  the  estate,  and  arrest  any  further  payment  by  the  executor  or 
administrator  of  claims  against  the  estate;  for  this  reason  all 
claims  are  required  to  be  filed  at  least  thirty  days  before  final 
settlement.  This  means  thirty  days  before  the  filing  of  any  final 
settlement  report  by  the  executor  or  administrator  after  one  year 
has  expired  from  the  time  of  giving  notice  of  his  appointment, 
and  not  thirty  days  before  the  confirmation  of  such  report  by  the 
court.  The  Supreme  Court,  in  further  construing  the  provisions 
of  this  statute,  say:  "The  proper  decision  of  that  question  de- 
pends upon  tlie  construction  to  be  given  to  the  phrase  'the  final 
settlement  of  the  estate'  as  used  in  that  provision.  The  term 
'final  settlement,'  as  applied  to  the  administration  of  an  estate,  is 
usually  understood  to  have  reference  to  the  order  of  court  ap- 
proving the  account  which  closes  the  business  of  the  estate,  and 
which  finally  discharges  the  executor  or  administrator  from  the 
duties  of  his  trust,  and  ought  generally  to  be  so  construed  when 
there  is  nothing  in  the  context  justifying  a  different  construction. 
But  we  regard  the  phrase  in  question,  in  the  connection  in  which 
it  is  used,  as  implying  more  than  the  mere  order  of  the  court 
declaring  the  estate  to  be  finally  settled.  When  the  court  makes 
an  order  approving  an  account  submitted  for  final  settlement,  it, 
in  the  absence  of  some  other  specific  direction,  relates  back  to  the 
time  the  account  was  filed,  and  gives  force  and  elTect  to  the  ac- 
count from  the  date  of  its  filing.  Therefore,  when  an  executor 
or  administrator  has,  after  the  expiration  of  the  proper  period  of 
time,  filed  his  account  for  final  settlement,  the  estate  is,  in  a 
limited  and  conditional  sense,  finally  settled.  The  only  condition 
in  such  case  is  that  the  account  shall  be  found  to  contain  a  full 
and  correct  exposition  of  the  condition  of  the  estate  at  the  time 
it  was  filed,  and  to  show  that  the  business  of  the  estate  has  been 
apparently  completed.    The  filing  of  the  final  account  is  the  com- 

"  Burns'  R.  S.  1908,  §  2837. 


400 


INDIANA    PROBATE    LAW.  §    260 


mencement  of  proceedings  for  final  settlement,  and  the  interven- 
inp-  death  of  the  executor  or  administrator  does  not  necessarily 
abate  the  proceedings  thus  instituted,  which,  when  consummated, 
thus  become  an  entirety.  Any  other  construction  might  result  in 
an  unreasonable  procrastination  in  the  final  settlement  of  an  estate 
by  the  presentation  and  allowance  of  claims  after  the  assets  are 
exhausted  and  tlie  final  account  is  filed,  thus  compelling  either  a 
withdrawal  or  the  rejection  of  such  final  account,  and  a  readjust- 
ment of,  or  a  deficiency  in,  the  assets  of  the  estate,  to  the  possible 
great  injury  of  the  executor  or  administrator,  as  well  as  of 
others.""* 

vj  260.  The  statement  of  the  claim. — In  preparing  a  claim 
for  presentation  and  filing,  no  particular  form  is  necessary,  pro- 
vided it  is  sufficiently  definite  to  notify  the  executor  or  adminis- 
trator of  its  character  and  amount  and  succinct  enough  to  bar 
another  action  thereon.  No  formal  complaint  is  necessary, 
though  it  is  no  objection  to  a  claim  if  it  is  filed  and  presented  in 
the  form  of  a  complaint.''''  All  that  is  necessaiw  by  way  of  a 
complaint  is  a  statement  containing  sufficient  substance  to  apprise 
the  administrator  or  executor  of  the  nature  of  the  demand,  and 
such  a  statement  that  a  judgment  based  thereon  may  be  used  to 

*^  Jackson    v.    Butts,    5    Ind.    App.  and     the     two     demands     must     be 

384,  32  N.  E.  96;  Stults  v.  Forst,  135  deemed  compensated  as   far  as  they 

Ind.  297,  34  N.   E.   1125;   Roberts  v.  equal  each  other"  a  claim  not  falling 

Spencer,    112   Ind.  85,   13   N.   E.    129;  within     any     of     the     exceptions     of 

Schrichte  v.  Stites,  127  Ind.  472, 26  N.  §  2828  as  amended,  may,   even  after 

E.  n,   1009.    Although  §2828,  Burns'  the     settlement     of     the     estate,     be 

R.    S.    1908,   provides   that   all   claims  pleaded    as    a    set-off    against   a   debt 

not  filed  thirty  days  before  the  final  held  by  the  heir  of  a  deceased  per- 

settlement     of     an     estate     shall     be  son,  although  a  separate  action  could 

barred   except   in   certain  cases,   nev-  not  be  maintained  upon  it.     Huffman 

ertheless,  under   §  357,   Burns'   R.    S.  v.  Wyrick,  5  Ind.  App.  183,  31  N.  E. 

1908,     which     provides     that     when  823. 

"cross-demands  have  existed  between  '*' Ginn  v.  Collins,  43  Ind.  271;  Post 

persons     under     such     circumstances  v.    Pedrick,   52   Ind.  490;    Taggart  v. 

that  one  could  be  pleaded  as  a  coun-  Tevanny,   1   Ind.  App.  339,  27  N.   E. 

terclaim     or     set-off     to     an     action  511;   Brown  v.   Sullivan,  3  Ind.  App. 

brought  upon  the  other,  neither  can  211,  29  N.  E.  453;  Sheeks  v.  Pillion,  3 

be  deprived  of  the  benefit  thereof  by  Ind.   App.  262,  29   N.   E.   786;   Han- 

the  death  or  assignment  of  the  other,  num  v.  Curtis,  13  Ind.  206;  Davis  v. 


26o 


CLAIMS  AGAINST  ESTATES. 


401 


bar  another  suit  for  the  same  claim.  Such  statements  are  placed 
upon  the  same  footing  as  those  required  to  be  made  by  the  plain- 
tiff in  actions  originating  before  a  justice  of  the  peace.*"'  The 
claimant  has  the  right,  in  order  to  meet  the  exigencies  of  his 
evidence,  to  state  his  claim  in  several  different  paragraphs."  The 
statement  filed,  must,  however,  contain  all  the  facts  necessary  to 
show,  prima  facie,  that  the  estate  is  lawfully  indebted  to  the 
claimant.*'^ 


Huston,  84  Ind.  272;  Lockwood  v. 
Robbins,  125  Ind.  398,  25  N.  E.  455 ; 
Knigbt  V.  Knight.  6  Ind.  App.  268, 
33  X.  E.  456;  Wolfe  v.  Wilsey,  2 
Ind.  App.  549,  28  N.  E.  1004.  A 
claim  tiled  against  a  decedent's  estate 
is  sufficient  if  the  demand  is  stated 
succinctly  and  definitely.  Succinct- 
ness and  definiteness  in  the  statement 
of  the  credits  to  which  the  estate  is 
entitled  are  not  required,  and  if  the 
credits  and  deductions  are  stated 
merely,  there  is  a  compliance  with 
the  statute.  Miller  v.  Eldridge,  126 
Ind.  461,  27  N.  E.  132.  'A  claim 
against  decedent,  reading,  "In  ac- 
count with  J.  M.  S.  and  L.  E.  S. 
*  *  *  Dr.,  for  board,  washing, 
sewing,  nursing  and  expense  of  last 
sickness,  watching  with  and  caring  for 
deceased  from  November  1,  1888,  to 
September  29,  1893;  total,  two  hun- 
dred and  fifty-six  weeks,  two  thou- 
sand one  hundred  and  twenty-five 
dollars,"  is  sufficient,  under  the  stat- 
ute requiring  holders  of  a  claim 
against  a  deceased  person  to  file  a 
"succinct  and  definite"  statement 
thereof  with  the  clerk  of  the  court. 
Stewart  v.  Small,  11  Ind.  App.  100, 
38  N.  E.  826;  Bailey  v.  Wilson,  45 
Ind.  App.  571,  91  N.  E.  249. 

^  Wolfe  v.  Wilsey,  2  Ind.  App. 
549,  28  N.  E.  1004;  Hopewell  v.  Kerr, 
9  Ind.  App.  11,  36  N.  E.  48;  Ginn  v. 
Collins.  43  Ind.  271;  Milhollin  v. 
Fuller.  1  Ind.  App.  58,  27  N.  E.  111. 


A  wife  loaned  money  to  her  husband 
from  time  to  time.  Thereafter  the 
wife  purchased  a  piece  of  real  estate, 
paying  a  portion  of  the  purchase- 
money  in  cash,  and  executing  a  mort- 
gage, in  which  her  husband  joined, 
to  secure  the  balance  thereof.  The 
wife  directed  the  husband  to  apply 
the  money  owing  by  him  to  her  on 
account  of  said  loans  to  the  payment 
of  such  mortgage,  and  he  fully  paid 
the  mortgage  indebtedness,  which 
was  greater  than  the  aggregate 
amount  of  the  loans.  Held,  that 
after  the  death  of  the  husband,  the 
wife  had  no  claim  against  his  estate 
on  account  of  said  loans.  Held,  also, 
that  the  payment  made  by  the  hus- 
band on  the  mortgage  should,  to  the 
extent  of  his  indebtedness  to  his 
wife,  be  treated  prima  facie  as  made 
in  compliance  with  her  request. 

"'Shirk  v.  Coyle,  2  Ind.  App.  354, 
27  X.  E.  638;  Wolfe  v.  Wilsey,  2 
Ind.  App.  549,  28  N.  E.  1004;  Frazer 
v.  Boss,  66  Ind.  1;  Taggart  v.  Te- 
vanny,  1  Ind.  App.  339,  27  N.  E.  511. 
"« Walker  v.  Heller,  104  Ind.  327, 
3  N.  E.  114;  Thomas  v.  Merry,  113 
Ind.  83.  15  X.  E.  244;  Taggart  v.  Te- 
vannv,  1  Ind.  App.  339,  27  N.  E.  511; 
Pulley  V.  Perfect,  30  Ind.  379;  Hath- 
awav'v.  Roll,  81  Ind.  567;  Windell  v. 
Hudson,  102  Ind.  521,  2  N.  E.  303; 
Culver  V.  Yundt.  112  Ind.  401,  14  N. 
E.  91;  Scholz  v.  Schneck,  174  Ind. 
186,  91  X.  E.  730. 


26 — Pro.  L.^w, 


402 


INDIANA  PROBATE  LAW.  §  260 


If  any  part  of  the  claim  is  sufficient  it  will  not  be  held  bad,  be- 
cause there  are  individual  items  which,  taken  singly,  would  not 
amount  to  a  good  cause  of  action.^® 

As  the  whole  of  a  decedent's  property,  both  real  and  personal, 
is  liable  for  the  payment  of  his  debts,  a  claim  for  damages  for  a 
breach  of  covenant  of  warranty,  in  a  deed  of  conveyance  made  by 
such  decedent  in  his  lifetime,  may  be  collected  by  filing  the  claim 
against  his  estate.  And  if  the  claim  did  not  accrue  in  time  to  be 
properly  filed  against  the  estate  before  its  final  settlement,  it  may 
be  prosecuted  against  the  heirs,  devisees  and  distributees  of  such 
decedent,  who  are  liable  for  his  debts  to  the  extent  of  the  property 
received  by  them  from  such  decedent's  estate.'^' 

'A  copy  of  a  promissory  note  executed  by  the  decedent,  accom- 
panied by  the  necessary  affidavit,  is  a  sufficient  statement  of  a 
claim  to  file  against  his  estate.'^  And  such  note  may  be  filed 
against  the  estate  whether  due  or  not.'" 

In  a  claim  against  the  estate  of  a  decedent,  founded,  not  upon 
a  note,  but  for  money  collected  on  the  note  and  converted  by  the 
decedent,  it  is  not  necessary  to  file  a  copy  of  the  note  with  the 
claim." 

The  estate  of  a  deceased  clerk  of  the  court  is  liable  for  money 

*®Taggart  v.  Tevanny,  1   Ind.  App.  "' Crabb    v.    Atwood,    10    Ind.    322; 

339,  27  N.  E.  511.  A  claim  filed  against  Pulley  v.  Perfect,  30  Ind.  379;  Noble 

a   decedent's   estate   is   sufficient   if  it  v.    :McGinnis,   55    Ind.    528;    Price   v. 

contain    enough    to    apprise    the    de-  Jones,   105  Ind.  543,  5  N.  E.  683,  55 

fendant   of   the   nature   of   the   claim  Am.  Rep.  230. 

and  the  amount  demanded,  and  to  ''  Maddox  v.  Maddox,  97  Ind.  537. 
bar  another  action  for  the  same  de-  "  Bryson  v.  Kelley,  53  Ind.  486.  An 
mand.  The  insufficiency  of  the  state-  allegation  in  a  complaint  against  a 
ment  of  one  or  more  of  the  separate  decedent's  estate,  that  the  decedent 
items  of  the  claim  will  not  render  died  without  having  paid  to  the 
bad  on  demurrer  the  entire  claim  plaintiff  certain  money  placed  in  his 
containing  other  separate  items  of  hands  by  a  third  person  for  the  ben- 
indebtedness  so  stated  that  if  they  efit  of  the  plaintiff,  and  that  it  is 
had  been  the  only  items  the  claim  due  and  unpaid,  is  sufficient  after 
would  withstand  a  demurrer.  Sheeks  verdict  to  show  that  the  decedent  at 
V.  Pillion,  3  Ind.  App.  262,  29  N.  E.  his  death,  and  his  administrator  upon 
786.  the   filing  of  the  claim,  still   retained 

'"Blair  v.  Allen,  55  Ind.  409;  Hart-  such   money.     Walker  v.   Heller,   104 

man  v.  Lee,  30  Ind.  281.  Ind.  327,  3  N.  E.  114. 


26o 


CLAIMS    AGAINST    ESTATES. 


403 


collected  by  such  clerk  in  his  official  capacity  and  not  paid  over  by 
him.    The  proper  remedy  is  by  filing  a  claim  against  the  estate." 

The  county  treasurer  is  not  compelled  to  file  a  claim  for  de- 
linquent taxes  due  against  an  estate  of  a  decedent,  but  he  may 
seize  the  personal  property  of  the  estate  in  the  hands  of  the  ex- 
ecutor or  administrator  to  satisfy  such  taxes. '^ 

Waste  committed  by  a  tenant  for  life  upon  the  real  estate  will 
constitute  a  valid  claim  in  favor  of  the  remainder-man  against 
the  estate  of  such  tenant.'^" 

The  statement  of  a  claim  filed  against  a  decedent's  estate  will 
not  be  insufficient  because  it  is  stated  against  the  deceased  and 
not  against  the  estate  or  the  executor  or  administrator  thereof." 

The  omission  of  a  Christian  name  of  a  claimant  in  the  state- 
ment of  his  claim  is  an  error  of  no  consequence;  is  at  best  only 
matter  in  abatement  and  may  be  amended.''® 

The  statute  does  not  require  the  claimant  to  set  forth  his  claim 
by  a  regular  complaint  constructed  in  accordance  with  the  ordi- 


'*  State,  ex  rel.,  v.  Givan,  45  Ind. 
267. 

'"Ring  V.  Ewing,  47  Ind.  246;  Gal- 
lup V.  Schmidt,  154  Ind.  196,  56  N.  E. 
443 ;  Cullop  v.  Vincennes,  34  Ind. 
App.  667,  n  X.  E.  166. 

'"Noble  V.   McGinnis,  55  Ind.  528. 

"  Boyl  V.  Simpson,  23  Ind.  393. 
A  claim  against  a  decedent's  estate 
in  the  following  form :  Estate  of 
A,  deceased,  to  B,  Dr.  "To  amount 
paid  on  judgment  against  said  dece- 
dent, upon  which  said  John  Kerr  was 
surety,  including  principal  and  inter- 
est from  date  of  judgment,  May  25, 
1878,  to  April  12,  1892  (paid  July  9, 
1890),  one  thousand  three  hundred 
and  fourteen  dollars  and  twelve 
cents,"  with  proper  affidavit  attached, 
is  sufficient  to  withstand  a  demurrer, 
the  remedy  sought  being  on  the  im- 
plied promise  growing  out  of  the  pay- 
ment of  the  judgment  by  the  surety. 
Hopewell  v.  Kerr,  9  Ind.  App.  11,  36 
X.  E.  48. 


^'Peden  v.  King,  30  Ind.  181. 
Where  a  claim  against  a  decedent's 
estate,  by  a  surety,  for  money  paid 
on  a  judgment  on  account  of  his 
suretyship,  is  not  sufficient  to  consti- 
tute a  claim  for  subrogation,  yet  it 
may  state  facts  sufficient  to  consti- 
tute a  good  cause  of  action  for  the 
recovery  of  money  so  paid,  and,  as 
such,  be  subject  to  the  plea  of  the 
six  years'  statute  of  limitations. 
Hopewell  v.  Kerr,  9  Ind.  App.  11,  Z(i 
X.  E.  48.  A  claim  for  the  allowance 
of  a  legacy  may  be  presented  in  the 
court  having  probate  jurisdiction  as 
a  claim  against  the  estate,  but  if  the 
payment  of  all  debts  against  the  es- 
tate is  not  alleged,  some  reason  for 
appealing  to  the  court  for  the  estab- 
lishment of  a  legacy  must  be  shown, 
and  also  some  wrong  on  the  part  of 
the  administrator.  Fickle  v.  Snepp, 
97  Ind.  289,  49  Am.  Rep.  449n ;  Hol- 
land v.  Holland,  131  Ind.  196,  30  N. 
E.  1075. 


404 


INDIANA    PROBATE    LAW.  §    261 


nary  rules  of  pleading,  but  the  statement  of  the  claim  must  con- 
tain facts  enough  to  show  that  the  estate  of  the  decedent  is  law- 
fully indebted  to  the  claimant.  The  statute  requires  such  a  state- 
ment of  facts  as  will  show  a  legal  liability  on  the  part  of  the 
estate,  and  as  will  with  reasonable  certainty,  indicate  to  the  execu- 
tor or  administrator  of  the  estate  what  he  is  called  upon  to 
meet." 

Indefiniteness  and  uncertainty  in  the  statement  may  be  aided 
or  cured  by  the  affidavit  which  must  accompany  it,^"  or,  if  the 
claim  is  embodied  in  the  affidavit  instead  of  a  separate  statement, 
it  will  be  sufficient." 

A  statement  of  a  claim  based  upon  a  promissory  note  which 
was  so  mutilated  that  the  signature  of  the  decedent  did  not  fully 
appear  thereon  is  insufficient  that  does  not  aver  that  the  claimant 
was  innocent  of  the  mutilation,  or  explain  fully  how  such  mutila- 
tion occurred.  The  filing  of  a  copy  of  the  mutilated  note  only  is 
not  sufficient.®' 

§  261.  When  estate  liable  on  covenants. — A  covenant  for 
the  payment  of  rent,  whether  it  be  made  by  the  grantee  of  lands 
in  fee,  reseiwing  rent  to  the  grantor,  or  by  a  lease  for  a  term,  be- 
longs to  that  class  of  covenants  which  are  annexed  to,  and  run 
with,  the  land.  The  land  itself  is  the  principal  debtor,  and  the 
covenant  to  pay  rent  is  the  incident.  It  follows  the  land  upon 
which  it  is  chargeable,  into  the  hands  of  the  assignee,^^  and  the 
administrator  of  a  deceased  tenant  cannot,  by  selling  or  assign- 
ing the  lease,  relieve  himself  or  the  estate  he  represents,  from  the 
obligation  to  pay  the  rent  which  accrues  after  the  death  of  the 
lessee.^* 

"  Leimgruber    v.    Leimgruber,     172  256,  49  X.  E.  361 :  Stewart  v.  Small, 

Ind.  370,  86  N.  E.  12>,  88  N.  E.  593;  11  Ind.  App.  100,  38  N.  E.  826. 

Hyatt  V.  Bonham,   19  Ind.  App.  256,  ''Brown   v.    Sullivan,    3    Ind.    App. 

49"  N.    E.    361;    Stanley's    Estate    v.  211.  29  X.  E.  453. 

Pence,  160  Ind.  636,  dd  N.  E.  51,  67  '=  McCulloch  v.  Smith,  24  Ind.  App. 

N.   E.'  441 ;   McCulloch  v.   Smith,  24  536,  57  N.  E.  143,  79  Am.  St.  281. 

Ind.  App.  536,  57  N.  E.  143,  79  Am.  ""Van   Rensselaer   v.   Bonesteel,  24 

St.    281;    Taber    v.    Zehner,    —    Ind.  Barb.  (N.  Y.)  365. 

App.  _,  93  X.  E.  1035.  **  Carley  v.  Lewis,  24  Ind.  23 ;  Will- 

^^  Hyatt   V.    Bonham,    19    Ind.    App.  iams  Exrs.,  1753. 


§  262  CLAIMS  AGAINST  ESTATES.  405 

A  covenant  in  a  deed  of  warranty  or  in  a  lease  to  pay  rent, 
broken  before  the  death  of  the  warrantor,  furnishes  a  cause  of 
action  for  its  breach,  against  the  estate  of  the  deceased  war- 
rantor.*^ Such  claim,  however,  when  filed  against  the  estate, 
should  show  how  the  breach  occurred.®*^ 

As  against  his  heirs  the  whole  of  a  decedent's  property,  both 
real  and  personal,  is  subject  to  the  payment  of  his  debts  and  lia- 
bilities ;  therefore,  a  claim  for  damages  arising  upon  a  breach  of 
a  covenant  of  warranty  made  by  a  decedent  in  his  lifetime  is  en- 
forcible  against  his  estate."  But  where  the  claim  for  damages 
for  breach  of  a  covenant  of  warranty  accrues  after  the  final  set- 
tlement of  the  estate  of  the  covenantor,  such  claim  may  be  recov- 
ered from  his  heirs.** 

§  262.  Contingent  claims. — A  contingent  claim  is  where 
the  liability  depends  upon  some  future  event,  which  may  or  may 
not  happen,  and  therefore  makes  it  now  wholly  uncertain  whether 
there  ever  will  be  a  liability.^®  The  rule  is  that  contingent  claim» 
are  not  enforcible  against  executors  or  administrators  after  they 
have  fully  administered  the  estate  without  any  notice  that  such 
claims  have  become  absolute. 

Claims  of  this  character  may  usually  be  enforced  against  the 
heirs  and  distributees  to  the  extent  at  least  of  the  property  they 
have  received  from  the  decedent.  If,  however,  such  claims  be- 
come absolute  and  certain  before  the  estate  is  finally  settled,  the 

'■'Townsend  V.  Morris,  6  Cow.   (N.  ^Woodford     v.     Leavenworth,     14 

Y.)     122;     Greenleaf    v.     Allen,     127  Ind.    311;    Hartman   v.    Lee,   30    Ind. 

Mass.  248.     In  Gibbs  v.  Ely,  13  Ind.  281.     If  a  breach  of  covenant  occurs 

App.  130,  41   N.  E.  351,  it  was  held  before  final  settlement  of  the  estate, 

that  where   a   claim    against  a    dece-  a  claim  for  damages  therefor  may  be 

dent's   estate   for  a  breach   of   cove-  filed  against  the  estate, 

nant  in  a  deed  discloses  that  the  de-  "  Hartman  v.  Lee,  30  Ind.  281. 

ceased,   instead   of   giving  possession  ^  Whittem   v.    Krick,  31    Ind.   App. 

under    the    deed,    retained   possession  577,  68  N.  E.  694;  Blair  v.  Allen,  55 

himself,  and  which  states  the  amount  Ind.  409. 

of  damage  sustained  by  the  claimant  ^  Sargent  v.  Kimball,  37  Vt.  320 ; 

by   reason   of    such  breach,   is   good.  Austin  v.   Saveland,  77  Wis.  108,  45 

Such  claim  need  not  fulfill  all  the  re-  X.  W.  955 ;   Hantzch  v.   Massolt,  61 

quirements  of  a  regular  complaint.  Minn.  361,  63  N.  W.  1069. 


406  INDIANA  PROBATE  LAW.  §  262 

executor  or  administrator  must  take  cognizance  of  them  as  they 
do  other  debts  of  the  decedent.*^" 

The  claim  of  a  surviving  partner  against  the  estate  of  the  de- 
ceased partner  for  contribution  for  losses  sustained  by  the  firm  is 
contingent  until  the  firm  business  is  fully  settled  and  the  partner- 
ship assets  converted  into  money  and  the  firm  debts  paid." 

A  claim  based  on  a  bond  where  the  default  does  not  occur  until 
the  time  for  presenting  claims  is  past  is  contingent;"-  also  where 
an  assessment  is  called  for  on  the  unpaid  capital  stock  in  a  cor- 
poration after  the  final  settlement  of  the  estate,  where  it  was  un- 
certain before  such  settlement  was  made  whether  such  assessment 
would  ever  become  necessary  and  if  so,  when.''^ 

In  some  of  the  states  the  statute  provides  for  the  presentation 
of  contingent  claims  before  they  become  absolute,  and  the  court 
may,  if  sufficient  cause  appear,  order  the  executor  or  adminis- 
trator to  retain  a  sufficient  sum  to  pay  such  claims  in  full  or  pro 
rata  as  the  assets  of  the  estate  will  justify  providing  that  the 
contingency,  which  will  make  such  claim  absolute,  happens  with- 
in a  reasonable  time.  Such  rule  as  this  tends,  however,  to  delay 
the  settlement  and  distribution  of  the  estate.  Our  statute  only 
seems  to  cover  certain  classes  of  contingent  claims,  and  in  so  far 
as  it  extends  it  specifically  provides  that  the  final  settlement  of  the 
estate  shall  not  be  delayed  by  the  allowance  of  the  class  of  claims 
to  which  it  applies. 

This  statute  reads  as  follows :  If  the  decedent  be  a  surety  only 
in  any  joint  or  joint  and  several  contract,  or  in  any  judgment 
founded  thereon,  his  estate  shall  not  be  liable  for  the  payment 
thereof  unless  it  be  shown  that  the  principal  is  a  nonresident  of 
this  state  or  is  insolvent :  Provided,  That  although  the  principal 
be  a  resident  of  this  state  and  his  insolvency  be  proved,  neverthe- 
less the  claim  may  be  allowed  against  the  estate  provisionally,  to 
be  paid  on  subsequent  proof  of  the  diligent  prosecution  of  the 
principal  to  insolvency,  or  that  such  prosecution  would  not  have 

*"  Woerner  Am.  Law  Admin.,  §  394.        ''-  State  v.  Buck,  63  Ark.  218,  37  S. 
"Logan  V.  Dixon,  73  Wis.  533,  41     W.  881. 
N    W.  713.  '^Lake    Phalen    Land    &c.    Co.    v. 

Lindeke,  66  Minn.  209,  68  N.  W.  974. 


26' 


CLAIMS  AGAINST  ESTATES.  4°? 


availed.    The  final  settlement  of  the  estate  shall  not  be  delayed  by 
reason  of  such  allowance;  but  an  amount  of  money  sufficient  to 
discharge  the  claim,  or  its  pro  rata  share  in  case  the  estate  be 
insolvent,  mav  be  paid  into  court  for  that  purpose.     After  notice 
to  the  creditor,  and  on  proof  that  his  demand  has  been  paid,  or 
that  he  has  failed  to  diligently  prosecute  the  principal,  and  that 
such  prosecution  would  have  availed,  the  court  shall  order  the 
money  reserved  to  be  distributed  to  the  heirs  or  legatees.     The 
creditor  mav,  at  anv  time  after  notice  to  the  parties  interested, 
applv  for  the  payment  of  his  claim;  and  if  it  appear  that  he  has 
diligently  prosecuted  the  principal  to  insolvency,  or  that  such 
prosecution  would  not  have  availed,  the  court  shall  order  his  claim 
to  be  paid.*** 

§  263.    Charging  estate  with  services  rendered  decedent.— 
The  rule  is  that  no  one  can  be  lawfully  charged   for  services 
except  upon  the  theory  of  a  promise  upon  his  part  to  pay  for  such 
services.     But  where  services  are  rendered  by  one  of  a  common 
family  to  another  member  of  such  family,  the  law  raises  no  pre- 
sumption of  compensation ;  no  promise  to  pay  is  implied.     Such 
services  are  supposed  to  be  prompted  by  a  sense  of  love  and  duty; 
to  be  rendered  in  the  nature  of  acts  of  kindness  and  affection 
between  members  of  the  common  family,  and  without  any  hope 
of  a  pecuniarv  compensation.     In  one  case  it  is  well  said  that 
''upon  this  principle  it  is  universally  held  in  all  cases  where  the 
family  relation  exists,  whether  natural  or  assumed,  in  the  absence 
of  an' express  agreement,  or  circumstances  from  which  an  agree- 
ment may  be  fairly  inferred,  that  no  promise  will  be  created  by 
implication  of  law  to  pay  for  services  upon  one  hand  or  for  sup- 
port upon  the  other.    This  rule  has  its  foundation  in  the  theory 
that  the  relation  repels  the  legal  inference  of  contract.'"' 

»*  Burns'  R    S    1908,  §  2831.  456;    Smith  v.   Denman,  48  Ind.  65; 

'Marnes  v.  Gillen,  3  Ind.  App.  472,  Kettry  v.  Thumma,  9  Ind.  App.  498, 
30  X.  E.  7;  Ston^  v.  Story,  1  Ind.  36  N.  E.  919;  Puterbaugh  v.  Puter- 
App  ^84  27'n.  E.'573;  Cauble  V.  Ry-  baugh,  7  Ind.  App.  280,  33  N.  E. 
man  26  Ind.  207;  Reeves  v.  Moore,  4  808,  34  N.  E.  611.  A  complamt  for 
Ind' App  492,  31  X.  E.  44;  Knight  v.  work  and  labor,  to  withstand  a  de- 
Knight    6   Ind.    App.   268,   33    N.    E.  murrer,  must  show  that  the  services 


408  INDIANA    PROBATE    LAW.  §    263 

So  if  it  appears  that  the  claimant  was  a  member  of  the  dece- 
dent's family  and  lived  with  and  rendered  services  to  the  de- 
cedent, without  any  understanding  either  express  of  implied,  that 
he  was  to  be^paid  for  such  sen-ices,  no  recovery  therefor  can  be 
had  against  the  estate.  On  the  other  hand,  if  an  express  agree- 
ment to  pay  is  shown,  or  facts  and  circumstances  from  which 
such  an  agreement  can  be  reasonably  inferred,  then  a  recovery 
can  be  had.  The  court  in  one  case  saying:  "If  the  circum- 
stances authorized  the  person  rendering  service  reasonablv  to 
expect  payment  therefor  by  way  of  furtherance  of  the  intention 
of  the  parties,  or  because  reason  and  justice  required  compensa- 
tion, the  law  will  imply  a  contract  therefor."^'' 

A  child  who  continues  to  live  with  its  parents,  as  a  member  of 
their  family,  cannot  recover  from  them,  nor  from  their  estates, 
for  services  performed  in  that  capacity,  without  proof  of  a  con- 
tract that  they  were  to  be  paid  for.**^ 

On  the  trial  of  a  claim  for  services  the  burden  is  on  the  claim- 
ant to  show  that  the  services  were  rendered  upon  the  request  of 
the  decedent  and  that  there  was  a  promise,  either  express  or  im- 
plied, to  pay  for  them.  No  burden  rests  upon  the  estate  to  show 
that  such  services  were  rendered  gratuitously.''^  Nor,  on  such 
trial,  are  statements  made  by  the  decedent,  out  of  the  presence  of 

performed  were  not  merely  volun-  "Oxford  v.  McFarland,  3  Ind.  156; 
tary,  and  must  show  an  agreement  Pitts  v.  Pitts,  21  Ind.  309;  Hays  v. 
to  pay,  or  circumstances  from  which  Seward,  24  Ind.  352.  A  promise  by 
the  same  may  be  properly  inferred;  a  parent  to  give  to  his  child  certain 
and  the  same  is  true  of  an  account  property  in  consideration  of  care  and 
for  such  services  filed  against  an  es-  nursing,  is  sufficient  to  rebut  the  pre- 
tate.  Taggart  v.  Tevanny,  1  Ind.  sumption  that  the  services  of  the 
App.  339,  27  N.  E.  511;  Miller  v.  child  were  gratuitous.  Stewart  v. 
Miller,  —  Ind.  App.  — ,  94  N.  E.  243.  Small,  1 1  Ind.  App.  100,^  38  N.  E. 
"'Crampton  v.  Logan,  28  Ind.  App.  826;  Fuller  v.  Fuller,  21  Ind.  App. 
405,  63  N.  E.  51;  Masters  v.  Jones,  42,  51  N.  E.  373;  Hill  v.  Hill,  45  Ind. 
158  Ind.  647,  64  N.  E.  213;  Eppert  v.  App.  99,  90  N.  E.  331;  Miller  v.  Mill- 
Gardiner,  —  Ind.  App.  — ,  93  N.  E.  er,  —  Ind.  App.  — ,  94  N.  E.  243. 
550;  Hill  V.  Hill,  45  Ind.  App.  99,  90  «^  Hedrick  v.  Hedrick.  —  Ind.  App. 
N.  E.  331;  Miller  v.  Miller,  —  Ind.  — ,  94  N.  E.  728;  Hunt  v.  Osborn,  40 
App.  — ,  94  N.  E.  243.  Ind.  App.  646,  82  N.  E.  933. 


§  263  CLAIMS  AGAINST  ESTATES.  409 

the  claimant,  that  he  did  not  consider  himself  indebted  to  the 
claimant  admissible.''^ 

Where  the  decedent  lived  with  her  son  as  a  member  of  his 
family,  and  without  any  agreement  with  her  that  he  was  to  be 
compensated  for  her  board  and  care,  he  cannot  recover  therefor 
from  her  estate.^ 

Ordinarily,  demands  for  boarding,  clothing  or  educating  the 
children  of  a  decedent  subsequent  to  his  death  are  not  demands 
against  his  estate,  and  his  executor  or  administrator  would  have 
no  right  to  pay  such  claim." 

The  estate  of  a  decedent  is  liable  for  services  performed  for 
his  family  after  his  death  under  a  contract  therefor  made  with 
him  in  his  lifetime.^ 

A  claim  for  medical  services  rendered  the  family  of  a  decedent, 
after  his  death,  although  rendered  upon  the  request  of  the  admin- 
istrator, will  not  lie  against  his  estate."* 

Where  services  have  been  performed  in  consideration  of  prop- 
erty to  be  conveyed,  if  the  contract  is  not  en  forcible  by  reason 
of  the  statute  of  frauds,  or  otherwise,  an  action  will  not  lie  on 
the  special  contract,  but  will  lie  on  an  implied  promise,  a  quantum 
meruit,  or  quantjam  valebat.^ 

The  statute  of  limitations  will  begin  to  run  against  a  claim  for 
services  rendered  a  decedent  from  the  time  when  such  service  was 
rendered.*^ 

The  rule  that  where  a  complaint  is  based  upon  an  implied  con- 

°*Eppert  V.  Gardiner,  —  Ind.  App.        'Wallace  v.  Long,   105  Ind.  522,  5 

—  93  X.  E.  550.  N.  E.  666,  55  Am.  Rep.  222;  Kettry 

^  Xiehaus  v.   Cooper,  22  Ind.  App.  v.  Thumma,  9  Ind.  App.  498,  36  N. 

610,  52  N.  E.   761 ;  Fuller  v.  Fuller,  E.  919.     A  claim  for  work  and  labor 

21     Ind.    App.    42,    51     N.     E.    373;  is    presumably   due   after   the   person 

Vaught  V.  Barnes,  29  Ind.  App.  387,  for  whom  the  work  is  performed  is 

62  N.  E.  93,  63  N.  E.  864,  64  N.  E.  dead,  although  it  is  not  essential  that 

623;  Lewis  v.  Hershey,  45  Ind.  App.  it  should  be  due  in  order  to  consti- 

104,  90  N.  E.  332.  tute   a  valid  cause  of  action  against 

"  Sorin  v.  dinger,  12  Ind.  29.  an  estate.     Lockwood  v.  Robbins,  125 

'Toland  v.  Stevenson,  59  Ind.  485;  Ind.  398,  25  N.  E.  455. 
Toland  v.  Wells,  59  Ind.  529.  *  Purviance    v.    Purviance,    14    Ind. 

'  Johnston  v.  Morrow,  28  N.  J.  Eq.  App.  269,  42  X.  E.  364. 
327. 


4IO 


INDIANA    PROBATE    LAW. 


§    264 


tract  no  recovery  can  be  had  upon  proof  of  an  express  contract 
does  not  apply  to  a  statement  of  a  claim  for  services  filed  against 
the  estate  of  a  decedent.^ 

The  evidence  in  claims  of  this  character  in  all  cases  should  be 
clear,  distinct  and  positive.  It  has  been  said  that  juries  cannot  be 
too  cautious  in  scrutinizing  claims  of  this  nature,  and  should  be 
careful  to  v^eigh  all  the  facts. ^ 

§  264.  Agreements  to  leave  property  by  will. — A  contract 
may  be  made  by  one,  in  which  for  certain  considerations,  he  will, 
at  his  death,  bequeath  or  devise  to  the  other  certain  property. 
Such  contracts,  when  supported  by  a  sufficient  consideration,  are 
valid  and  will  be  upheld.'' 


'  Masters  v.  Jones,  158  Ind.  647,  64 
N.  E.  213. 

'Brock  V.  Slaten,  82  111.  282; 
Wilkes  V.  Cornelius,  21  Ore.  348,  28 
Pac.  135. 

Says  the  court  in  Disbrow  v.  Du- 
rancl,  54  N.  J.  L.  343,  24  Atl.  545,  33 
Am.  St.  678:  "The  proof  of  services, 
and  as  well  of  the  family  relation, 
leaves  the  case  in  equipoise  from 
which  the  plaintiff  must  remove  it, 
or  fail."  In  this  latter  case  it  is  also 
stated  that  this  exception  to  the  gen- 
eral rule  of  presumption  of  intended 
compensation  "stands  upon  a  reason 
which  logically  and  properly  must 
extend  it  to  all  members  of  a  house- 
hold, however  remote  their  relation- 
ship may  be,  and,  indeed,  even  to 
those  who,  though  not  next  of  kin, 
stand  in  the  situation  of  kindred  in 
one  household." 

And  where  an  adult  son  was  found 
insane,  after  having  left  his  home, 
and  then  was  taken  to  his  mother's 
house,  and  there  nursed  and  cared 
for  by  her,  with  the  understanding 
that  she  would  be  compensated  there- 
for, he  being  unfit  to  render  any 
services  in  return,  it  was  held  that 
the    presumption    that     the    services 


were  rendered  gratuitously  by  the 
mother  did  not  arise.  Jessup  v.  Jes- 
sup,  17  Ind.  App.  177,  46  N.  E.  550. 

r.ut  in  some  states  the  mere  rela- 
tionship is  held  to  be  itself  strong 
negative  proof,  and  raises  a  pre- 
sumption that  no  compensation  was 
to  be  made.  Hall  v.  Finch,  29  Wis. 
278,  9  Am.  Rep.  559;  Spitzmiller  v. 
Fisher,  77  Iowa,  289,  42  N.  W.  197; 
Bell  v.  Rice,  50  Neb.  547,  70  N.  W. 
25.  In  Phillips  v.  Sanchez,  35  Fla. 
187,  17  So.  363,  the  court  says :  "The 
presumption  that  services  rendered 
by  one  near  relative  to  another,  he 
being  an  inmate  of  the  family,  are 
rendered  gratuitously,  is  strong  or 
weak  in  proportion  to  the  nearness 
of  the  relationship." 

Claims  against  a  dead  man's  estate 
which  might  have  been  made  against 
himself  while  living,  are  always  the 
subject  of  just  suspicion,  and  our 
books  are  full  of  expressions  by  this 
court  of  the  necessity  of  strict  re- 
quirement of  proof  and  the  firm  con- 
trol of  juries  in  such  cases.  In  re, 
Mueller's  Estate,  159  Pa.  St.  590,  28 
Atl.  491. 

-Cox  V.  Cox,  26  Gratt.  (Va.)  305; 
Watson  V.  Mahan,  20  Ind.  223;  Sut- 


264 


CLAIMS  AGAINST  ESTATES. 


411 


The  contract  may  be  enforced  against  the  legatees  and  per- 
•sonal  representatives  of  the  testator,  when  the  will  does  not  con- 
tain the  provision  promised/'^  If  no  will  is  made,  or  if  the  will 
made  proves  to  be  void,  the  contract  may  be  enforced  against 
the  heirs  and  personal  representatives  of  the  decedent." 

The  evidence  in  support  of  such  contracts  must  be  definite  and 
conclusive.  It  is  said  that  "such  claims  are  always  dangerous, 
and  when  they  rest  upon  parol  evidence  they  should  be  strictly 
scanned."  Such  contract  can  only  be  enforced  when  it  is  clearly 
proved  by  direct  and  positive  testimony,  and  when  its  tenns  are 
definite  and  certain.  A  promise  to  give  the  claimant,  as  a  consid- 
eration for  services  "as  much  as  any  relative  he  had  on  earth"  is 
too  indefinite  and  uncertain  to  be  enforced. ^- 

But  services  that  are  rendered  by  one  under  an  express  agree- 
ment that  they  are  to  be  compensated  by  a  provision  to  be  inserted 
in  the  will  of  the  party  for  wliom  they  are  to  be  rendered,  are  a 


ton  V.  Hayden,  62  Mo.  101 ;  Davison 
V.  Davison,  13  X.  J.  Eq.  246;  Mad- 
dox  V.  Rowe,  23  Ga.  431,  68  Am. 
Dec.  535 ;  Logan  v.  McGinnis,  12  Pa. 
St.  27;  Parsell  v.  Stryker,  41  N.  Y. 
480;  Shakespeare  v.  Markham,  10 
Hun  (N.  Y.)  311  (contains  review 
of  cases).  An  instrument  containing 
an  admission  of  the  indebtedness  by 
the  decedent,  and  a  promise  to  pay 
after  his  death,  will,  if  duly  authenti- 
cated and  introduced  in  evidence, 
support  a  judgment  against  his  es- 
tate. Hathaway  v.  Roll,  81  Ind.  567; 
Price  v.  Jones,  105  Ind.  543,  5  N.  E. 
683,  55  xA.m.  Rep.  230;  Wolfe  v.  Wil- 
sey,  2  Ind.  App.  549,  28  N.  E.  1004; 
Garrigus  v.  Home  &c.  Missionary 
Soc,  3  Ind.  App.  91,  28  N.  E.  1009, 
SO  Am.  St.  262.  See :  Caviness  v. 
Rushton,  101  Ind.  500,  51  Am.  Rep. 
759;  Wright  v.  Jones,  105  Ind.  17,  4 
N.  E.  281;  Roehl  v.  Haumesser,  114 
Ind.  311,  15  N.  E.  345. 

"  Schutt  v.  Missionary  Soc,  41  N. 
J.  Eq.  lis,  3  Atl.  398. 


"  Alderson  v.  Maddison,  L.  R.  5 
Ex.  Div.  293;  Hiatt  v.  Williams,  72 
Mo.  214,  2>1  Am.  Rep.  438.  Where 
the  niece  of  a  decedent  makes  her 
home  with  him  in  consideration  that 
he  will  educate,  clothe  and  support 
her  as  his  own  daughter,  and  make 
her  an  heir  to  his  estate,  and  he  dies 
without  making  any  provision  for 
her,  by  will  or  otherwise,  the  agree- 
ment is  void  under  the  statute  of 
frauds ;  but  it  rebuts  the  presumption 
that  the  services  were  rendered  grat- 
uitously, and  an  action  will  lie  on  a 
quantum  meruit  to  recover  their 
value.  In  such  case,  the  value  of  the 
services  performed,  and  not  the  value 
of  the  property  agreed  to  be  con- 
veyed, is  the  measure  of  damages. 
Nelson  v.  Masterton,  2  Ind.  App. 
524,  28  N.  E.  731.  See:  Wallace  v. 
Long,  105  Ind.  522,  5  N.  E.  666,  55 
Am.  Rep.  222. 

"  Graham  v.  Graham,  34  Pa.  St. 
475 ;  Mug  v.  Ostendorf,  —  Ind.  — ,  96 
N.  E.  780. 


412  INDIANA  PROBATE  LAW.  §  264 

sufficient  consideration  for  such  promise,  and  a  promise  based 
upon  that  consideration  will  make  a  valid  contract,  not  affected 
by  the  statute  of  frauds,  for  a  breach  of  which  an  action  arises, 
as  in  case  of  any  other  breach  of  contract.  And  a  claim  for  such 
services  will  lie  against  the  estate  of  the  promisor." 

It  is  not  necessary  that  such  agreement  be  in  any  particular 
form,  and  its  validity  is  to  be  tested  as  is  that  of  other  contracts. 
No  action  can  be  sustained  upon  an  agreement  of  this  character 
until  after  the  death  of  the  promisor.^* 

The  contract  affects  only  such  property  as  the  decedent  leaves 
at  his  death,  and  if  a  full  performance  has  been  rendered  impossi- 
ble by  the  decedent  in  his  lifetime,  compensation  for  the  services 
actually  rendered  may  be  recovered  by  the  claimants.^^ 

In  such  event  the  measure  of  damages  is  the  value  of  the  sei'v- 
ices  rendered  and  not  the  proportion  of  the  estate  promised. ^^ 
And  such  agreements  when  resting  on  parol,  are  within  the 
statute  of  frauds,  and  to  recover  the  terms  of  the  contract  must 
not  only  be  clearly  established  but  the  claimant  must  also  bring 
himself  within  the  doctrine  of  part  perfonnance,  for  unless  the 

"Bell  V.  Hewitt,  24  Ind.  280;  Lee  The  instrument  was  attested  by  only 
V.  Carter,  52  Ind.  342.  But  see  Cavi-  one  witness,  and,  after  the  death  of 
ness  V.  Rushton,  101  Ind.  500,  51  Am.  E.  M.,  was  filed  as  a  claim  against 
Rep.  759;  Schoonover  v.  Vachon,  121  her  estate.  Held,  that  the  instrument 
Ind.  3,  22  N.  E.  Ill;  Miller  v.  El-  was  testamentary  in  its  character, 
dridge,  126  Ind.  461,  27  N.  E.  132.  and,  as  it  was  not  attested  and  sub- 
Where  a  child  supports  its  parents  scribed  by  "two  or  more  competent 
under  a  contract,  their  estate  is  liable  witnesses,"  as  required,  it  could  not 
for  such  support.  Botts  v.  Fultz,  70  be  duly  admitted  to  probate,  and  that 
Ind.  396.  it   was  therefore,   invalid  as   a   claim 

^*  Patterson  v.  Patterson,  13  Johns,  against    the     decedent's    estate,    and 

(N.    Y.)    379;    Snyder   v.    Castor,   4  void  and  inoperative  for  any  purpose. 

Yates    (N.   Y.)    357.     While   in   life,  Moore  v.  Stephens,  97  Ind.  271.   See: 

one  E.  M.  executed  a  written  instru-  Johnston  v.  Griest,  85  Ind.  503. 

ment  of  the  following  purport :    "At  ^^  Robinson  v.  Raynor,  28  N.  Y.  494 ; 

my    death,    my    estate    shall    pay    to  Updike  v.   Ten   Broeck,   32   N.   J.   L. 

treasurer,"    etc.,    "the     sum    of    two  105;  Neal  v.  Gilmore,  79  Pa.  St.  421. 

hundred  dollars,  the  interest  of  which  "Graham    v.    Graham,   34    Pa.    St, 

is  to  be  used  for  the  benefit  of,"  etc.  475. 


.«    26-  CLAIMS    AGAINST    ESTATES.  413 

claimant  has  performed  his  part  of  the  contract  he  has  no  stand- 

ing  in  court.''  .  t    „„ 

The  failure  of  the  testator  to  make  a  bequest,  in  favor  of  one 
who  rendered  senices  to  him  upon  a  promise  that  such  services 
should  be  paid  for  by  such  bequest,  renders  his  estate  liable  for 
the  value  of  such  services." 

Such  contract  will  be  scanned  closely  and  very  satisfactory 
oroof  of  the  fairness  and  justness  of  the  transaction  should  be 
required,  and  specific  perfomance  will  not  be  decreed  when  any 
material  part  of  the  terms  or  conditions  are  uncertain     . 

\  promise  to  "remember"  a  person  in  one's  will,  tobe  a 
binding  promise,  must  be  based  upon  a  valid  considerat.on.- 

§  265     Disposition  of  claims  founded  on  joint  contracts.— 
It  was  the  rule  of  common  law  that  one  bound  jointly,  but  not 
severally,  with  another  upon  a  promissory  note  or  other  wntten 
contract  was.  at  his  death,  absolutely  discharged  from  all  liability 
on  such  note  or  contract,  and  the  surviving  joint  maker  or  makers 
on  such  instrument  were  alone  responsible."    This  principle  or 
rule  of  law  has  not,  however,  been  recognized  m  Indiana    or 
manv  vears.    As  early  as  1831  it  was  provided  by  statute  tha   the 
personal  representatives  of  a  deceased  joint  obligor  should  be 
iiable  to  an  action  at  law  in  the  same  manner  as  if  the  obligation 
were  joint  and  several.'^    And  by  legislative  enactment  June  i,. 
18=;-'   the  estate  of  any  deceased  joint  obligor  or  promisor  was 
mad^  liable  for  its  proportionable  part  of  ^^hatever  was  due  on 
anv  joint  contract  or  judgment  founded  thereon.-'   Lnder  these 
.Ico.    V     Cox,    26    Gratt.    (Va.)        =■  Gel.y  v.  Binsse,  49  N.  Y^  385,  10 
305 'Rhodes    v.-  Rhodes,   3    Sandfd.     A-..  Rep.  379.  Woo     v. J^^,  «  V 

°;;;^;:in.     SC...    15    r„d.  Sla/ef ;..^^r9  Ho^w.   (U.  S.  S3, 

Ann    q4    44    X     E     766;    Woods    v.  13  L.   ed.  56,    FicKers^in    v 

iZ2  19'lnd.  App.  364,  46  N.  E.  15  Wall.  (LL  SO  HO.  21  L.  ed.  119. 
384;    Alerding   v.    Allison,    170    Ind.        ^  %'f''^- ^^\,^    §70      Prior 
9^?   R^  \   E   1006   127  Am.  St.  363n.        =^  R.    S.    1852,   p.  ^6Z,   S  /u. 

''"Mundorff  rKUbcurn,  4  Md.459;  .o  the  adoption  o«.*-  -'■-  ^  '- 

Nichols  V.  Williams.  22  N.  J.  E,.  63;  ecu.or     or     ^^^^ff^-^^^  ^f  „i^h 

Wri.h.  V    Wright,  31  Mich.  380.  jo.ned  m  a  su.t  as  a  defendant  w.tn 

"purviance    v.    Pnrviance,    14   Ind.  others,  when  the  decedent,  tf  In.ng, 

^pp  26r42  X.  E.  364.  would    have    been    a    proper    patty. 


414  INDIANA    PROBATE    LAW.  §    265 

Statutes  it  was  held  that  a  joint  action  could  be  maintained  against 
the  other  joint  obligors  or  promisors  and  the  personal  repre- 
sentatives of  the  deceased ;  or  the  claim  might  be  filed  for  allow- 
ance against  the  estate  of  such  deceased  joint  obligor  or  promisor 
and  his  proiX)rtionable  share  due  on  such  contract,  recovered 
against  his  estate ;  or  if  it  were  shown  that  such  deceased  obligor 
or  promisor  was  the  principal  upon  any  such  joint  obligation  the 
whole  amount  due  on  such  contract  might  be  recovered  from  his 
estate.  Separate  suits  might  be  maintained  against  the  other  co- 
obligors  or  promisors  and  their  proportionable  share  recovered. 
The  plaintiff  had  his  election  to  proceed  under  either  method.-'* 

But  the  present  statute  so  far  changes  the  above  rule  as  to  for- 
bid the  bringing  of  a  suit  in  the  ordinary  form  against  the  per- 
sonal representatives  of  any  deceased  joint  obligor  or  promisor 
on  any  joint  obligation  or  contract  signed  by  such  decedent;  and 
provides  that  the  enforcement  of  any  such  joint  contract,  or  the 
collection  of  any  joint  judgment  founded  thereon,  against  the 
estate  of  such  decedent,  shall  be  by  filing  the  claim  for  allowance 
in  the  regular  manner  against  such  estate.  This  statute  makes  all 
joint  contracts,  for  all  practical  purposes,  several  as  well  as  joint, 
and  makes  the  estate  of  any  deceased  joint  obligor  or  promisor 
now  liable  for  the  entire  amount  of  such  contract,  or  judgment 
founded  thereon,  as  if  such  contract  were  joint  and  several.  The 
whole  amount  due.  instead  of  a  proportionable  share,  must  now 
be  allowed  against  such  estate.  Upon  the  death  of  the  principal, 
in  order  to  protect  the  interests  of  the  sureties  in  any  joint  obliga- 
tion not  yet  due,  it  is  absolutely  necessary  to  file  the  claim  against 
his  estate  and  postpone  the  settlement  of  the  estate  until  the 

Braxton  v.  State,  ex  rel.,  25  Ind.  82;  Braxton  v.  State,  ex  rel.,  25  Ind.  82  r 

Stanford    v.    Stanford,   42    Tnd.    485;  Prichard    v.    State,    ex    rel.,    34    Ind. 

Corbaley   v.    State,    ex    rel.,    81    Ind.  137;   Myers  v.  State,  ex  rel.,  47  Ind. 

62.     The  finding  and  allowance  of  a  293;  Moore  v.   State,  ex  rel.,  49  Ind. 

joint    obligation    as    a    claim    against  558;    Milam    v.    Milam,    60    Ind.    58; 

the  estate  of  one  of  the  makers  does  Fiscus     v.     Robbins.     60     Ind.     100; 

not  prevent  a  suit  against  the  other  Wright  v.  Jordan,  71  Ind.  1;  McCoy 

makers.     Greathouse  v.  Kline,  93  Ind.  v.    Payne,    68    Ind.    327;    Redman    v. 

Marvil,    1Z    Ind.    593;    Corbaley    v. 


598. 


'Weyer  v.  Thornburg,  15  Ind.  124;     State,  ex  rel.,  81  Ind.  62 


§    265  CLAIMS    AGAINST    ESTATES.  4^5 

maturity  of  the  obligation,  othei-wise  the  sureties  would  have  no 
remedy.  It  is  in  favor  of  the  interest  of  the  sureties  to  have  such 
claim  allowed  against  a  principal's  estate  as  soon  as  admissible,  in 
order  that  they  may  receive  the  benefit  of  what  is  realized  from 
the  estate;  and  as  an  inducement  to  the  claimant  to  procure  his 
claim  to  be  so  allowed,  such  allowance  shall  not  release  the  sur- 
eties from  liability;  for  if  the  contract  is  made  several  as  to  the 
estate  it  must  necessarily  be  several  as  to  the  survivors.  If  the 
claim  can  be  filed  against  the  estate  of  the  principal,  and  all  real- 
ized thereby  that  can  be,  it  diminishes  to  that  extent  the  amount 
that  the  sureties  are  liable  for.  This  statute  also  creates  an  ex- 
ception to  the  rule  that  a  judgment  against  a  part  of  joint  obligors 
merges  the  obligation  and  releases  the  other  obligors  by  making 
the  obligation,  after  the  death  of  one  of  the  obligors,  several  as 
well  as  joint. "^ 

It  is  provided  by  statute  that  when  two  or  more  persons  shall 
be  jointly  liable  on  a  contract  or  judgment,  and  either  of  them 
shall  die,  his  estate,  executors  and  administrators  shall  be  liable 
for  the  failure  to  perform  the  contract  and  for  the  payment  of  the 
judgment,  to  the  same  extent  and  in  the  same  manner  as  if  such 
contract  or  judgment  were  joint  and  several.-*'  But  no  action 
shall  be  brought  by  complaint  and  summons  against  any  executor 
or  administrator  and  any  person  or  persons,  or  his  or  their  legal 
representatives,  upon  any  contract  executed  jointly,  or  jointly  and 

='Greathouse  v.  Kline,  93  Ind.  598.  against  his  estate.     ^lilam  v.  Milam, 

An  administrator  or  executor  cannot  60  Ind.  58. 

be  joined  as  a  defendant  in  an  action  ="  Burns'  R.  S.  1908,  §  654.  Under 
on  a  joint  obligation  executed  by  the  this  statute  an  ordinary  suit  cannot 
decedent  and  others.  Norwood  v.  be  commenced  by  complaint  and 
Harness,  98  Ind.  134,  49  Am.  Rep.  summons  against  an  executor  or  ad- 
739;  State  v.  Cunningham,  101  Ind.  ministrator  and  any  other  person  on 
461.  If  an  action  is  pending  against  a  joint  contract  of  the  decedent, 
a  decedent  at  his  death,  the  suit  may  State  v.  Cunningham,  101  Ind.  461. 
be  continued  against  his  personal  But  if  the  administrator  should  en- 
representatives.  Clodfelter  v.  Hulett,  ter  a  general  appearance  to  such  suit, 
92  Ind.  426.  On  the  death  of  the  if  begun,  he  waives  any  right  to 
principal  in  a  joint  contract,  such  plead  its  abatement.  Morrison  v. 
contract    may    be    filed    as    a    claim  Kramer,  58  Ind.  38;  Frazer  v.  Boss, 

66  Ind.  1. 


4l6  INDIANA  PROBATE  LAW.  §  266 

severally,  by  the  deceased  and  such  other  person  or  persons,  or 
upon  any  joint  judgment  founded  thereon;  but  the  holder  of  said 
contract  or  judgment  shall  enforce  the  collection  thereof  against 
the  estate  of  the  decedent  only,  by  filing  his  claim  in  the  manner 
required  by  law.-'  And  every  contract  executed  jointly  by  the 
decedent  with  any  other  person  or  persons,  and  every  joint  judg- 
ment founded  on  such  contract,  shall  be  deemed  to  be  joint  and 
several  for  the  purpose  contemplated  in  the  last  preceding  section ; 
and  the  amount  due  thereon  shall  be  allowed  against  the  estate 
of  the  decedent  as  if  the  contract  were  joint  and  several.-* 

Before  the  enactment  of  these  statutes  the  proper  practice  was 
to  make  the  executor  or  administrator  a  party  in  an  action  against 
the  survivors  in  any  joint  contract,  but  these  statutes  change  the 
rule.=^« 

§  266.  When  decedent  is  co-surety. — If  the  decedent  be 
boi3nd  as  a  co-surety  in  any  joint  or  joint  and  several  contract, 
or  judgment  founded  thereon,  his  estate  shall,  in  case  of  the  non- 
residence  or  insolvency  of  the  principal,  as  aforesaid,  be  liable 
only  for  its  proportional  part  of  the  debt,  according  to  the  number 
of  solvent  sureties  resident  in  the  state. ^" 

As  between  the  estate  of  the  deceased  surety  and  a  co-surety, 
the  estate  is  liable  only  for  its  proportionate  share. ^^ 

The  mle,  as  established  in  this  state,  is  that  the  death  of  a 

-'  Burns'  R.  S.  1908,  §  2829.  complaint.      It    was    necessary,    how- 
■^  Burns'  R.  S.  1908,  §  2830.  ever,  for  the  plaintiff  to  aver  that  he 
^  Norwood  V.  Harness,  98  Ind.  134,  had  paid  money  for   the  benefit  and 
49  Am.  Rep.  739;   State  v.   Cunning-  use  of  the  decedent,  or  of  his  estate, 
ham,  101  Ind.  461.  in   the   discharge   of   a   duty   or  obli- 
^^  Burns'  R.  S.  1908,  §  2832.  gation  resting  upon  him.     It  was  also 
^^  Thornburg     v.     Allman,     8     Ind.  necessary  to   aver  what   that   obliga- 
App.    531,    35    X.    E.    1110.      In   this  tion  was.     *    *    *    To  prove  merely 
case  it  is  said :    "This  action  is  not  a  that    the    appellee    paid    the    money 
suit  on  the  note,  but  is  a  suit  to  re-  would  not  establish  his   right  to   re- 
cover money  paid  by  a  surety  for  the  cover.     He  must  prove  that  he  paid 
use   and  benefit  of  his  principal.     It  the  money  for  the  benefit  of  the  de- 
was  not  necessary  to  make  the  note  cedent  or  the  estate." 
or  a  copy  thereof  an  exhibit  to  the 


§  267  CLAIMS  AGAINST  ESTATES.  417 

surety  does  not  discharge  his  estate  from  liability  upon  his  joint 
contracts.^" 

The  liability  under  this  section  of  the  statute  is  contingent  on 
the  non-residence  or  insolvency  of  the  principal  debtor  and  is 
confined  to  that  part  of  the  debt  as  proportioned  according  to  the 
number  of  resident  solvent  sureties.  And  when  one,  who  as  co- 
surety with  a  decedent  has  paid  the  debt  and  holds  a  lien  against 
such  decedent's  real  estate  for  a  contributive  share  of  such  debt  he 
can  either  file  his  claim  therefor  against  the  estate  of  such  dece- 
dent or  enforce  his  lien  against  the  land  after  the  final  settlement 
of  the  estate.  ^^ 

The  question  of  suretyship  may  be  determined  by  a  cross-com- 
plaint in  an  action  on  a  claim. ^* 

§  267.  Duty  of  clerk  as  to  claims,  etc. — The  clerk  of  the 
probate  court  is  required  to  keep  in  his  office  a  book  as  a  general 
entry,  claim  and  allowance  docket,  and  on  the  right  hand  page  of 
such  docket  under  the  head  of  the  estate  the  clerk  shall  keep  a 
record  of  the  claims  filed  against  such  estate  showing  the  number 
of  the  claim,  the  name  of  the  claimant,  the  date  when  the  claim 
was  filed,  the  date  of  its  allowance  and  the  amount  of  such 
allowance,  and  such  other  information  as  may  be  necessary.  The 
clerk  shall  number  the  claims  as  filed  from  one  upward  and  the 
claim  shall  bear  the  number  given  it  in  all  subsequent  proceedings 
in  the  estate. ^°  If  a  claim  so  filed  is  secured  by  a  lien  the  clerk 
shall  note  upon  such  docket  the  nature  of  the  lien.  The  filing 
and  entry  of  a  claim  by  the  clerk  as  required  by  this  statute  is  the 
commencement  of  the  action  upon  such  claim,  of  which  the  ex- 
ecutor or  administrator  is  bound  to  take  notice  without  summons 
or  process  of  any  kind.^*'  Nor  is  it  necessary  in  filing  a  claim 
against  an  estate  to  make  formal  parties  thereto  of  the  executor 
or    administrator,®^    although    the    action    must    be    prosecuted 

==  McCoy    V.    Payne,    68    Ind.    327;  ''Burns'  R.  S.  1908,  §  2835. 

Hudelson  v.  Armstrong,  70  Ind.  99.  '"  Burns'  R.  S.  1908,  §  2836. 

""  Beach   v.    Bell,    139    Ind.    167,    38  ""Taggart  v.  Tevanny,  1  Ind.  App. 

N.  E.  819.  339,  27  N.  E.  511;   Bowman  v.  Citi- 

"  Bowman    v.    Citizens    Xat.    Bank,  zens'  Xat.  Bank,  25  Ind.  App.  38,  56 

25  Ind.  App.  38,  56  N.  E.  39.  X.  E.  39. 

27— Pro.  Law. 


41 8  INDIANA    PROBATE    LAW.  §    268 

against  such  personal  representative  throughout  all  its  stages,  it 
being  said  that  "the  estate  of  a  dead  man  cannot  be  a  party  to  a 
suit  without  some  representative."^* 

The  clerk  being  a  public  officer,  in  the  absence  of  any  proof  to 
the  contrary,  it  will  be  presumed  that  he  did  what  the  law  re- 
quired him  to  do,  and  that  a  claim  was  properly  entered,  etc., 
when  it  appears  on  the  docket  of  the  trial  court. ^'* 

When  a  claim  shall  have  been  allowed  or  adjudged  by  the  court 
in  favor  of  the  claimant,  the  clerk  of  the  court  shall  enter  the 
amount  of  the  claim  and  date  of  allowance  or  judgment,  under 
the  proper  heading  in  the  allowance  docket,  and  immediately 
opposite  the  entry  of  tlie  claim  on  tlie  claim  docket.'"^ 

§  268.  Duty  of  executor  or  administrator  as  to  claims. — 
When  claims  are  properly  entered  and  docketed  by  the  clerk  the 
law  makes  it  the  duty  of  even-  executor  or  administrator  to  in- 
quire into  the  correctness  of  all  claims  filed  against  the  estate  that 
he  represents,  and  to  make  all  available  defenses  thereto,  and  if 
he  fails  so  to  do,  he  shall  be  liable  on  his  bond,  at  the  suit  of  any 
person  interested  in  the  estate,  for  all  damages  sustained  by  the 
estate  in  consequence  of  such  neglect.*^ 

The  statute  of  1843  §'^ve  to  an  administrator  the  right  to 
admit  the  justness  of  claims  against  the  estate  of  his  decedent 
and  allow  the  same  if  found  correct,  but  this  power  was  taken 
from  him  by  the  statute  of  1852,  and  a  trial  of  every  claim  on 
its  merits  was  required.  The  litigation  and  costs  occasioned 
by  this  method  created  so  much  disaffection  that  the  law  was 
corrected,  and  now  an  executor  or  administrator  is  authorized 
to  admit  and  allow  all  claims  he  may  deem  just  and  correct.*^ 

The  statute  as  it  now  stands  prescribes  their  duties  in  reference 

^  Welts  V.  Wells,  71  Ind.  509;  Mc-  lam    v.    Stockwell's    Estate,    33    Ind. 

Conahey's    Estate   v.   Foster,   21    Ind.  App.  620,  71  N.  E.  911. 

App.  416,  52  N.  E.  619;  Dunn  v.  Es-  ^Sanders  v.   Hartge,   17  Ind.   App. 

tate  of  Evans,  28  Ind.  App.  447,  63  243,  46  N.  E.  604. 

N.    E.    36 ;    Whisler   v.   Whisler,    162  ''  Burns'  R.  S.  1908,  §  2846. 

Ind.  136,  67  N.  E.  984,  70  N.  E.  152;  "Burns'  R.  S.  1908,  §  2840. 

Estate  of  Guernsey  v.  Pennington,  33  *^Lasure  v.  Carter,  5  Ind.  498. 
Ind.   App.   119,  70   N.   E.   1008;   Dal- 


§    268  CLAIMS    AGAINST    ESTATES.  419 

to  claims  in  detail  as  follows:    Executors  and  administrators  of 
estate  shall,  on  the  first  Monday  of  Januar>%  March,  May,  July, 
September  and  November  of  each  year,  examine  all  claims  upon 
the  claim  and  allowance  docket  in  the  proper  court  and  filed 
against  the  estate  represented  by  them.     All  such  claims  which 
have  thus  been  so  filed  for  more  than  thirty   (30)   days  shall 
either  be  allowed  or  disallowed  by  such  executor  or  administrator 
at  the  next  succeeding  bi-monthly  examination,  which  action  shall 
be  expressed  in  writing  on  the  margin  of  such  claim  and  allow- 
ance docket  opposite  such  claim.     If  any  claim  is  so  disallowed 
in  toto,  it  shall  at  once  be  transferred  to  the  issue  docket  and  stand 
for  issue  and  trial  as  other  causes  where  return  day  has  passed. 
•  Should  such  executor  or  administrator  fail,  or  refuse  to  either 
allow  or  disallow  any  such  claim,  after  the  same  has  been  filed 
for  more  than  sixty  days,  as  herein  provided,  then  the  clerk  of 
such  circuit  court  shall  at  once  transfer  such  claim  to  and  enter 
the  same  upon  the  issue  docket,  where  the  same  shall  stand  for 
trial  as  other  causes ;  and  in  case  the  court,  upon  final  hearing  of 
such  action,   allows  in   full  the  claim  which  such  executor  or 
administrator  has  neglected  or  refused  to  either  allow  or  disallow, 
then  the  costs  of  such  action  shall  be  taxed  against  such  executor 
or  administrator  as  an  individual.     Or  if  the  executor  or  admin- 
istrator, after  investigating  the  merits  of  such  claim  shall  be  of 
the  opinion  that  the  estate  is  liable  for  a  part  thereof  only,  he 
shall  state  in  writing  on  the  margin  of  such  claim  and  allowance 
docket,  opposite  such  claim,  his  offer  to  allow  a  certain  amount  of 
<=uch  claim,  and  if  the  claimant  desires  to  accept  the  offer  so  made, 
in   full   settlement   of   his   claim,   he  shall   note   his   acceptance 
thereof  on  said  docket.     If  any  such  claim  is  not  so  allowed  in 
full,  or  if  any  such  offer  to  allow  in  part  is  not  so  accepted  before 
the  first  Monday  of  the  month  next  following  the  action  thereon 
by  said  executor  or  administrator,  then  such  claim  shall  be  trans- 
ferred to  and  entered  upon  the  issue  docket  of  the  court  and 
shall  stand  for  trial,  as  other  civil  actions  pending  therein ;  and  if, 
upon  the  trial  of  any  such  claim  on  which  an  offer  to  allow  a  part 
has  been  so  made,  the  claimant  fails  to  recover  more  than  the 


420  INDIANA  PROBATE  LAW,  §  269 

amount  offered,  such  claimant  shall  he  liahle  for  all  costs  occa- 
sioned after  the  making  of  such  offer:  Provided,  That  the  court 
may,  in  its  discretion,  require  further  proof  as  to  any  claim,  not- 
withstanding- the  executor  or  administrator  may  have  allowed  the 
claim  in  the  manner  provided  in  this  act/^ 

Under  this  statute,  prior  to  its  amendment  in  1903,  before  a 
claim  could  be  transferred  to  the  issue  docket  of  the  court  it 
must  have  been  filed  and  entered  by  the  clerk  upon  the  allowance 
docket  ten  days  before  the  next  ensuing  term  of  court  and  if 
not  allowed  by  the  executor  or  administrator  before  the  last  of 
that  term,  it  stood  for  trial  at  the  ensuing  term  of  court  there- 
after." 

§  269.  Same — Continued. — A  claim  should  not  be  allowed 
which  shows  upon  its  face  that  it  was  barred  by  the  statute  of 
limitations  prior  to  the  grant  of  administration."  But  if  such 
claim  has  become  barred  after  the  administration  granted,  it  may 
be  allowed  and  paid."^ 

Claims  may  be  allowed  by  an  executor  or  administrator  without 
inquiring  whether  there  are  assets  sufficient  to  pay  them,  and 
without  any  regard  as  to  whether  or  not  they  are  preferred/' 

But  he  will  be  held  liable  on  his  bond  to  one  interested  for  an 
injury  arising  from  his  failure  to  resist  an  unjust  or  unfounded 
claim  against  the  estate.*^ 

The  allowance  of  a  claim  is  conclusive  as  to  the  personal  prop- 
erty of  a  decedent,  but  it  only  creates  a  prima  facie  right  against 
his  real  estate.*^ 


3urns 


„ R.  S.  1908,  §  2837.  Gorham,  119  Ind.  436,  21  N.  E.  1096. 

Scott  V.  Dailey,  89  Ind.  477.  ''  Smith  v.  Cuyler,  78  Ga.  654,  3  S. 

« Patterson    v.    Cobb,    4   Fla.    481 ;  E.  406. 

Trotter  v.  Trotter,  40  Miss.  704.  '"Cole  v.   Lafontaine,  84  Ind.  446; 

'"  Payne    v.    Pusey,   8    Bush    (Ky.)  Jackson  v.  Weaver,  98  Ind.  307.    The 

564;  Byrd  v.  Wells,  40  Miss.  711.  allowance  of  a  claim  by  an  adminis- 

"  Fickle  V.    Snepp,  97  Ind.  289,  49  trator  is  not  conclusive  upon  the  heirs 

Am.  Rep.  449n ;  Goodbub  v.  Hornung,  in  a  proceeding  to  sell  lands  to  pay 

127  Ind.  181,  26  N.  E.  770.    The  rec-  debts.     Cole   v.    Lafontaine,   84   Ind. 

ord   of   an   allowance   of   a  claim   is  446.    If  an  improper  claim  be  allowed 

prima   facie  evidence  of  the  validity  against  an  estate  the  heirs  or  devisees 

and  amount  of  the  claim.     Smith  v.  may  bring  an  action  to  have  the  al- 


§    269  CLAIMS   AGAINST   ESTATES.  42 1 

If  a  claim  filed  shows  the  right  of  action  to  be  in  a  third  party 
it  should  not  be  allowed. '° 

An  executor  or  administrator  may  legally  allow  a  claim  which 
he  finds,  on  investigation,  to  be  correct,  although  it  may  not  have 
been  properly  filed. ^^ 

A  claim  cannot  be  allowed  in  a  proceeding  to  distribute  the 
surplus.  In  apportioning  such  surplus,  debts  due  the  estate  from 
the  distributees  may  be  taken  into  consideration,  but  such  debts 
are  not  claims  against  the  estate.^" 

But  an  executor  or  administrator  cannot  allow  his  own  claim 
due  him  from  the  estate  of  his  decedent.  Such  claim  must  be 
transferred  to  the  issue  docket  and  set  down  for  trial  as  other 
adversary  cases. ""^  And  this  rule  of  law  is  applicable  to  any  claim 
of  an  executor  or  administrator,  whether  held  by  him  in  his  per- 
sonal right,  or  as  an  executor  or  administrator  of  another  estate, 
or  as  guardian  or  trustee  in  any  matter  wherein,  ordinarily,  he 
mio-ht  sue  in  his  own  name.  It  is  not  to  be  supposed  that  the 
creditor,  by  becoming  administrator  of  the  estate,  should  aban- 
don his  claim,  or  be  deprived  of  all  means  of  enforcing  it,  with- 
out resigning  his  tmst.     He  cannot  allow  it ;  and  it  is  therefore 

lowance  set  aside.     Bell  v.  Ayres,  24  shows  a  cause  of  action  in  favor  of 

Ind.  92 ;  Lancaster  v.  Gould,  46  Ind.  some  person  other  than  the  claimant, 

397.      And    where    an    administrator  it   is  bad   on   demurrer    for  want  of 

had  his  own  claim  allowed  as  a  pre-  facts.      Walker    v.    Heller,    104    Ind. 

ferred    claim    the    creditors    are    not  Zll ,  3  X.  E.  114. 

bound,  and  may  question  such  allow-  ''  Lancaster  v.  Gould,  46  Ind.  397. 

ance.    Jenkins  v.  Jenkins,  63  Ind.  120.  "  Carroll    v.    Swift,    10    Ind.    App. 

^  Martin    v.    Asher,    25    Ind.    237.  170,  Zl  N.  E.  1061.     In  this  case,  the 

Where  the   claim   is  filed  against  an  court    says:     "The    court    may    take 

estate  other  persons  cannot  be  joined  into   consideration  debts   due  the  es- 

as    defendants.      Noble   v.    McGinnis,  tate   from   the   distributees,   but   such 

55  Ind.  528.     And  where  a  claim  has  debts  are  not  claims   against,  but  in 

been   so   filed,  then  dismissed  by  the  favor  of,  the  estate." 

claimant   and   refiled  against  the  ad-  ""  Hubbard  v.  Hubbard,  16  Ind.  25 ; 

ministrator  alone,  it  is  not  a  continu-  Chidester  v.    Chidester,  42  Ind.  469; 

ation  of  the  suit  but  the  beginning  of  Collins  v.  Tilton,  58  Ind.  374;  Bent- 

a  new  action.     Niblack  v.   Goodman,  ley  v.  Brown,  123  Ind.  552,  24  N.  E. 

67    Ind.    174.     Where    the    statement  507. 


422  INDIANA    PROBATE    LAW.  §    27O 

necessary  that  such  a  claim  should  be  placed  upon  the  issue  docket 
for  trial. ^^ 

The  English  doctrine  of  retainer,  by  which  an  executor  or  ad- 
ministrator is  pemiitted  to  retain  in  his  hands  from  the  assets 
of  the  estate  sufficient  to  pay  any  debt  due  him  from  the  decedent, 
in  preference  to  all  other  creditors  of  equal  degree,  has  no  place 
in  the  law  of  this  state. 

A  claim  should  not  be  allowed  by  an  administrator,  on  the  un- 
supported oath  of  the  claimant,  when  he  has  had  warning  that  the 
claim  is  unjust. ^" 

Where  there  are  two  or  more  administrators,  the  allowance  of 
a  claim  against  the  estate  by  any  one  of  them  is  the  act  of  the 
others,  and  is  binding  upon  all."""" 

If  the  administrator  does  not  deem  the  claim  a  just  one,  or  if 
some  person  having  a  legal  right  to  do  so,  objects  to  its  allowance, 
or  if,  for  anv  reason,  he  is  unwilling  to  allow  the  claim,  he  should 
reject  it,  and  remit  the  claimant  to  his  action  at  law,  or  other  pro- 
ceeding allowed  by  statute  to  establish  it.^' 

§  270.    Effect  of  allowance  by  executor  or  administrator. — 

The  allowance  of  a  claim,  as  provided  for  in  this  act.  shall,  as 
between  the  claimant  and  the  executor  or  administrator,  be  opera- 
tive, and  as  an  adjudication  of  the  validity  and  amount  of  the 
claim,  and  presumptive  evidence  thereof,  in  any  proceeding  by 
the  executor  or  administrator  for  the  sale  of  the  real  estate  of 
the  decedent  to  discharge  the  liabilities  of  his  estate.^^ 

''Wright   V.    Wright,   12    Ind.    149;  termine    the    question    of    preference, 

Jenkins    v.  Jenkins,  63  Ind.  120.  tliat  being  a  matter  to  be  settled  on  a 

"^  McWhorter    v.    Donald,   39    Miss,  distribution  of  the  assets  of   the  es- 

779,    80    Am.    Dec.    97;    Egerton    v.  tate.     Goodbub  v.  Hornung,  127  Ind. 

Egerton,  17  N.  J.  Eq.  419.  181,  26  N.  E.  770;  Jenkins  v.  Jenkins, 

"■■  Willis  V.  Farley,  24  Cal.  491.  63  Ind.   120.     If  heirs  of  a  decedent 

"  Woerner  Am.  Law  Admin.,  §  390.  assist  in  defending  a  claim,  they  will 

"'  Burns  R.    S.    1908,   §   2838.     If   a  be  estopped   from  disputing  the  cor- 

claim  is  just  it  may  be  allowed,   al-  rcctness    of    an    order    allowing    the 

though  it  is  not  in  an  itemized  form,  same  in  a  proceeding  to  sell  lands  to 

Lancaster  v.  Gould,  46  Ind.  397.     In  pay    debts.      Smith    v.    Gorham,    119 

the  allowance  of  a  claim  by  an  execu-  Ind.  436,  21  X.  E.  1096. 

tor    or    administrator    he    cannot    de- 


§    2/0  CLAIMS    AGAINST    ESTATES.  423 

The  statute  does  not  give  to  the  mere  admission  and  allowance 
of  a  claim  against  a  decedent's  estate,  by  his  executor  or  admin- 
istrator, the  force  and  effect,  or  any  of  the  qualities,  of  a  judg- 
ment on  such  claim.  The  only  effect  given  by  such  admission 
or  allowance  by  an  executor  or  administrator  is  to  stop  litigation 
and  costs  on  such  claim;  for  if  the  claim  is  not  thus  admitted 
within  the  time  limited,  it  must  be  transferred  to  the  issue  docket 
of  the  court  and  stand  for  trial.  Such  admission  of  a  claim  is  not 
final  as  a  judgment  thereon  would  be ;  for  "the  court  may,  in  its 
discretion,  require  further  proof  as  to  any  claim,  notwithstand- 
ing the  executor  or  administrator  may  have  admitted  the 
claim."''" 

The  allowance  or  rejection  of  a  claim,  though  not  a  judgment 
in  the  strict  sense  of  the  term,  yet  operates  as  an  adjudication 
between  the  claimant  and  the  executor  or  administrator  of  the 
controversy  between  them,  and  is  binding  upon  the  estate  and  its 
representatives  as  well  as  upon  the  claimant.''" 

The  rule  is  that  the  allowance  of  a  claim  by  an  executor  or 
administrator,  and  the  approval  of  such  allowance  by  the  proper 
court,  binds  all  the  parties  thereto  and  their  privies,  but  as  against 
those  who  are  neither  parties  nor  privies,  such  action  is  only 
prima  facie  evidence  of  indebtedness,  and  they  may  go  behind 
such  allowance  and  show  that  the  claim  was  not  a  proper  charge 
against  the  estate."'^ 

A  judgment  operates  as  a  merger  of  the  cause  of  action  upon 
which  it  is  rendered, **-  and  an  allowance  made  by  the  court  upon 
a  claim  against  the  estate  of  the  decedent  has  the  full  force  and 
effect  of  a  regular  judgment,  therefore  the  assignment  of  a  note 
after  it  has  been  allowed  as  a  claim  against  an  estate  transfers 
nothing  to  the  assignee.     A  claim  so  allowed  has,  in  legal  con- 

''Fiscus  V.  Robbins.  60  Ind.  100.  v.    Hodge,    5    Tex.    487;    Laidley    v. 

""Boyl    V.    Simpson,    23    Ind.    393;  Kline,  8  W.  Va.  218;  Eccles  v.  Dan- 

Maddox    v.    Maddox,    97    Ind.    537;  iels,    16  Tex.   136;    In   re,   Estate   of 

Bentley  v.  Brown,  123  Ind.  552,  24  N.  Schroeder,  46   Cal.   304;    Marshall   v. 

E.    507;    LaPorte    v.    Organ,    5    Ind.  Rose,  86  III.  374. 
App.  369,  32  X.  E.  342.  »=  Cissna    v.    Haines,    18    Ind.    496; 

''^  State  V.  Ramsey  County,  25  Minn.  Marshall  v.  Stewart,  65  Ind.  243. 
22;  Stone  v.  Wood,  16  111.  177;  Neill 


424  INDIANA    PROBATE    LAW,  §    2/1 

templation,  ceased  to  exist. "^  And  the  record  of  such  allowance 
is  prima  facie  evidence  of  the  validity  and  amount  of  the  claim."* 
And  although  the  form  of  the  order  making  an  allowance 
against  an  estate  differs  from  an  ordinary  judgment  on  which  ex- 
ecution may  issue,  yet  it  is  in  all  essentials  an  adjudication  as  to 
the  validity  and  amount  of  the  claim,  and  is  to  that  extent  a  judg- 
ment and  binding  upon  the  estate  and  the  representatives  of  the 
estate,  the  executor  and  administrator."'' 

§  271.  Claim  of  executor  or  administrator — How  allowed. 
• — The  allowance  of  a  claim  due  the  executor  or  administrator 
from  the  decedent  stands  on  the  same  footing  as  the  claim  of  any 
other  creditor,  except  that  it  should  be  more  closely  scrutinized."" 

While  the  estate  of  a  decedent  is  in  contemplation  of  law  a 
legal  entity,  yet  it  cannot  be  a  party  to  a  suit  without  some  rep- 
resentative, and  the  suit  shall  be  prosecuted  in  the  name  of  the 
representative  as  such.  It  is,  therefore,  better  form  for  an  ex- 
ecutor or  administrator  of  such  estate  to  file  a  claim  against  the 
estate  in  his  individual  capacity  against  himself  in  his  representa- 
tive capacity."^  An  executor  or  administrator  cannot  allow  a 
claim  of  his  own  against  the  estate  he  represents.  It  would 
be  in  violation  of  a  plain  principle  of  law  in  reference  to  parties, 
as  well  as  plain  common  sense,  to  require  him  to  act  in  the  double 
capacity  of  sole  plaintiff,  urging  his  individual  interests,  and  sole 
defendant,  resisting  himself,  and  at  the  same  time  expecting  him 
to  act  as  efficiently  and  honestly  in  the  one  character  as  in  the 
other.  Such  claim  must  pass  upon  the  issue  docket  and  be  set 
down  for  trial,  and  tried  as  any  other  adversaiy  case ;  and  in  set- 
ting such  claim  down  for  trial  on  the  issue  docket  there  must  be 
an  adversary  party  named,  either  in  his  complaint  or  by  the 
court. "^ 

''  McClure  v.  McClure,  19  Ind.  185 ;  Ind.   537 ;    Boyl    v.    Simpson,   23    Ind. 

Jenkins     v.     Jenkins,    63    Ind.     120;  393. 
Brown  v.  Darrah,  95  Ind.  86.  ''"Wood  v.  Rusco,  4  Redf.   (N.  Y.) 

"Smith  V.  GorhanT,  119  Ind.  436,  21  380;  Wall's  Appeal,  38  Pa.  St.  464. 
N.  E.  1096.  "  Wells  v.  Wells,  71  Ind.  509. 

'^  Bentley  v.    Brown,    123   Ind.   552,        ^  Hubbard  v.  Hubbard,  16  Ind.  25 ; 

24  N.  E.  507;  Maddox  v.  Maddox,  97  Devol  v.  Halstead,  16  Ind.  287;  Chid- 


§  271  CLAIMS  AGAINST  ESTATES.  425 

The  statute  provides  that  whenever  a  claim  in  favor  of  an 
executor  or  administrator  against  the  estate  he  represents,  which 
accrued  before  the  death  of  the  decedent,  shall  be  filed  against 
said  estate,  with  the  affidavit  of  the  claimant  attached,  thirty  days 
before  the  commencement  of  the  term  of  said  court  during  which 
the  claim  is  to  be  presented  for  allowance,  the  judge  of  said 
court  shall  represent  said  estate  and  shall  examine  into  the  nature 
of  said  claim,  and  if  the  same  be,  by  said  court,  deemed  just  and 
risht,  said  court  shall  allow  said  claim,  and  order  the  same  paid 
out  of  said  estate,  as  other  claims  of  the  same  class,  and  said 
court  may,  in  its  discretion,  examine  under  oath  such  executor  or 
administrator,  or  any  other  person,  touching  said  claim,  and  if 
such  court  shall  be  of  the  opinion  that  the  interests  of  said  estate 
will  be  promoted  by  active  opposition  to  such  claim,  it  shall  be 
the  duty  of  such  court  to  appoint  a  practicing  attorney  of  said 
court  to  represent  said  estate,  and  the  same  pleadings,  issues  and 
trial  may  be  had  as  in  other  claims,  and  such  court  shall  allow 
to  such  attorney,  to  be  paid  out  of  said  estate,  such  fees  for  his 
services  as  may  be  deemed  by  said  court  just  and  right,  and  no 
attorney  shall  be  allowed  compensation  for  representing  the  estate 
of  a  decedent  in  defense  of  such  a  claim,  except  when  appointed 
in  pursuance  of  this  act/'^ 

This  adjustment  and  allowance  by  the  court  bind  the  repre- 
sentatives of  the  estate,  and  are  an  adjudication  as  to  the  validity 
and  amount  of  the  claim  in  favor  of  the  administrator,  and  are 
equally  as  binding  upon  such  administrator  and  subsequent  ad- 
ministrators of  such  estate  as  would  be  the  allowance  of  a  claim 
in  favor  of  a  third  party.'" 

ester  v.  Chidester,  42  Ind.  469;  Stan-  interests  of  the  estate,  and  after  in- 

ford  V.  Stanford,  42  Ind.  485;  Wright  vestigation  of  the  merits  of  the  claim, 

V.  Wright,  72  Ind.  149.  the  attorney  reported  to  the  court  an 

^  Burns  R.  S.  1908,  §  2839.  amount  agreed  upon  to  be  allowed  in 

'"  Bentley   v.    Brown,    123    Ind.   552,  settlement,  and  the  court  approved  of 

24  N.  E.  507.     Where  an  administra-  such     adjustment     and     allowed     the 

tor   files   a   claim   in   his   own    favor,  claims   to    the    amount    agreed   upon, 

against  the  estate  he  represents,  and  the  adjustment  and  allowance  by  the 

the  record  shows  that  the  court  ap-  court  bind  the  representatives  of  the 

pointed  an  attorney  to  represent  the  estate,  and  are  an  adjudication  as  to 


426  INDIANA    PROBATE    LAW.  §    272 

§  272.  Interested  parties  may  resist  allowance. — In  all 
cases  where  a  claim  is  filed  against  the  estate  of  a  decedent,  and 
has  been  allowed  by  the  executor  or  administrator,  any  person 
interested  in  the  estate,  upon  written  petition  to  the  court,  shall 
be  allowed  at  his  expense  to  defend  such  claim,  notwithstanding 
such  allowance;  but  such  petition  must  be  filed  with  the  clerk  of 
tiie  proper  court  within  sixty  days  after  the  claim  has  been  by 
such  executor  or  administrator  indorsed,  allowed  on  the  claim 
docket  and  before  the  final  settlement  of  such  estate,  and  such 
petition  shall  be  accompanied  by  a  bond  with  sufficient  surety, 
payable  to  the  executor  or  administrator,  to  be  approved  \)y  the 
clerk,  conditioned  for  the  payment  of  the  costs  that  shall  be 
adjudged  against  him;  if  the  amount  of  the  claim  be  reduced  ten 
per  cent,  on  such  trial,  the  court  shall  order  the  costs  and  all  ex- 
penses incurred  by  such  persons  in  contesting  such  claim,  paid 
out  of  such  estate;  but  in  case  of  failure  to  so  reduce  it,  such  per- 
son contesting  such  claim  shall  pay  all  costs  occasioned  the  estate 
thereby.'^ 

Nothing  in  this  statute  shall  be  construed  to  prevent  the  heirs 
or  their  grantees  from  contesting  the  allowance  of  a  claim,  in  a 
proceeding  by  the  executor  or  administrator  to  sell  the  real  estate 
of  the  decedent.  While  the  judgment  or  allowance  of  the  claim 
is  conclusive  as  to  the  personal  estate,  it  is  only  prima  facie  suffi- 
cient to  charge  the  real  estate,  and  is  not  conclusive  against  the 
heirs  or  their  grantees.  Under  such  a  proceeding  the  heirs  and 
their  grantees  are  entitled  to  defend  against  a  claim,  whether  the 
claim  has  been  allowed  or  not.'- 

the  validity  and  amount  in  favor  of  110  Ind.  428,"  11  N.  E.  8,  12  X.  E.  304. 

such    administrator,    and    is    equally  The  owner  of  lands  liable  to  be  sold 

binding  upon  such  administrator,  and  to  pay  the  debts  of  the  decedent  may 

subsequent  administrators  of  such  es-  contest  claims  filed  against  the  estate, 

tate,  as  would  be  the  allowance  of  a  Mackey  v.  Ballou,  112  Ind.  198,  13  N. 

claim  in  favor  of  a  third  party.    Mad-  E.  715;  O'Haleran  v.  O'Haleran,  115 

dox  v.  Maddox,  97  Ind.  537.  Ind.  493,   17  N.  E.  917. 

"'Burns   R.   S.    1908,   §   2844.     This  '- Scherer    v.     Ingerman,    110    Ind. 

section  does  not  prevent  heirs   from  428,  11  N.  E.  8,  12  N.  E.  304;  Mackey 

controverting  claims   that   have  been  v.  Ballou,  112  Ind.  198,  13  N.  E.  715; 

allowed  in   proceedings  to   sell   lands  O'Haleran  v.  O'Haleran,  115  Ind.  493, 

to  pay  debts.     Scherer  v.   Ingerman,  17  N.  E.  917;  Beaty  v.  Voris,  138  Ind. 


^    273  CLAIMS    AGAINST    ESTATES.  4^7 

§  273.  Proceedings  when  claim  not  allowed.— Where  the 
creditor  has  properly  filed  and  presented  his  claim  and  the  ex- 
ecutor or  administrator,  for  any  reason,  has  neglected  or  refused 
to  allow  it.  the  next  step  is  to  establish  the  claim  as  a  valid 
demand  against  the  estate  in  the  proper  court  having  probate 
jurisdiction.  This  step  is,  so  far  as  either  the  claimant  or  the  ad- 
ministrator is  concerned,  automatic,  the  statute  providing  that 
it  shall  at  once  be  transferred  to  the  issue  docket  and  stand  for 
issue  and  trial.''  This  statutor}^  method  is  simple,  informal,  and 
differs  materially  from  the  method  of  establishing  such  claims  at 

common  law. 

As  we  have  shown  the  statute  requires  an  executor  or  admm- 
istrator,  after  a  claim  has  been  filed  against  the  estate  represented 
by  him.  to  investigate  the  merits  of  such  claim,  and  if  the  clann 
is  found  correct,  to  allow  the  same.  This  is  a  positive  duty 
.enjoined  on  him,  not  one  to  be  exercised  at  his  discretion,  and  if 
he  neglects  it,  and  a  meritorious  claim,  through  such  neglect,  is 
transt^rred  to  the  issue  docket  for  trial,  he  should  be  mulcted  in 
the  extra  cost  occasioned  thereby.  After  the  lapse  of  the  time 
named  in  the  statute,  all  claims  which  have  not  been  allowed  shall 
be  transferred  to  the  issue  docket  of  the  court  for  trial.  It  is 
necessary  that  a  claim  should  be  properly  presented  and  filed,  and 
placed  upon  the  appearance  docket  of  the  proper  court,  and  if 
it  is  not  allowed  by  the  executor  or  administrator,  it  shall  be 
transferred  to  the  issue  docket  of  the  court.     Unless  these  pro- 

265.  yi  X.  E.  785;  Willard  Executors,  ting  or  denying  assets,  between  judg- 
2^y^  ments  de  bonis  propriis  and  de  boms 
""By  these  means  the  common-law  intestatis  or  testatoris,  and  judgments 
Tight  of  preferring  one  creditor  of  quando  acciderint,  as  well  as  the  com- 
the  same  class  over  another;  the  right  plicated  formalities  of  enforcing 
of  retainer  for  the  administrator's  judgments  against  executors  and  ad- 
own  debt;  the  artificial  system  of  ministrators,  are  swept  away.  ihe 
pleading  the  existence  of  a  debt  of  rights  of  creditors  are  thus  secured; 
superior  dignity  in  bar  of  an  inferior  and  executors  and  administrators  re- 
one  or  plene  administravit,  or  rien  lieved  of  all  responsibility  except 
ultra  in  case  of  insufficiency  of  as-  faithfully  to  present  any  defense 
sets;  the  marshalling  of  assets  or  se-  which  they  may  be  aware  of,  on  the 
curities  by  courts  of  equity;  the  tech-  trial."  Woerner  Am.  Law  Admin., 
nical  distinction  between  pleas  admit-  §  391. 


428  INDIANA  PROBATE  LAW.  §  274 

visions  of  the  statute  have  been  complied  with,  such  claim  cannot 
be  tried  without  the  consent  of  the  executor  or  administrator.  He 
has  the  right  to  investigate  and  allow  such  claim  in  due  order 
without  trial/* 

A  claim  against  an  estate  which  has  been  properly  filed  and 
transferred  to  the  issue  docket  is  a  civil  action  within  the  meaning 
of  the  statute  authorizing  a  change  of  judge  in  civil  cases.  It  is 
said,  "a  claim  against  an  estate  should  no  more  be  tried  before  a 
biased,  prejudiced  or  interested  judge,  than  any  other  civil 
action."'^  And  in  the  trial  of  claims  against  estates,  it  has  been 
held  that  a  jury  may  be  allowed.  It  is  not  allowed  as  a  matter 
of  right,  the  right  depending  much  upon  the  nature  of  the  claim. "^ 
In  fact,  as  a  rule,  whenever  they  are  applicable,  the  rules  of  pro- 
cedure in  civil  cases  should  be  applied  to  the  practice  in  probate 
matters.'^' 

An  executor  or  administrator  has  no  authority  to  submit  a 
claim  upon  an  agreed  statement  of  facts,  under  the  statute  provid- 
ing for  such  statement.'^ 

If  the  executor  or  administrator  enter  a  general  appearance  to 
a  claim  after  it  has  been  transferred  to  the  issue  docket  he  thereby 
waives  all  irregularities  in  the  filing,  entry  on  the  allowance 
docket  and  transfer  to  the  issue  docket  of  such  claim. ^^ 

§  274.  Practice  on  transfer  of  claim. — When  any  claim  is 
transferred  for  trial,  it  shall  not  be  necessary  for  the  executor  or 
administrator  to  plead  any  matter  by  way  of  answer,  except  a  set- 
oft  or  counter-claim,  to  which  the  plaintiff  shall  reply.  If  the 
executor  or  administrator  plead  any  other  matter  by  way  of  de- 
fense, the  claimant  shall  reply  thereto;  the  sufficiency  of  the  state- 
ment of  the  claim  or  any  subsequent  pleading,  may  be  tested  by 

■*  Morrison  v.  Kramer,  58  Ind.  38;  "' Goodbub    v.    Hornung,    127    Ind. 

Scott  V.  Dailey,  89  Ind.  477;  Stapp  v.  181,  26  N.  E.  770. 

Messeke,  94  Ind.  423.  "  Henes  v.  Henes,  5  Ind.  App.  100, 

"Lester  v.  Lester,  70  Ind.  201.  31    N.    E.   832.     But   see  Robbins   v. 

'°  Taggart  v.  Tevanny,  1  Ind.  App.  Swain,  7  Ind.  App.  486,  34  N.  E.  670. 

339,    27    N.     E.    511;     Sherwood    v.  ™  Sanders  v.   Hartge,   17  Ind.  App. 

Thomasson,   124   Ind.   541,  24   N.   E.  243,  46  N.  E.  604. 
334;  Hamlyn  v.  Nesbit,  Zl  Ind.  284. 


§    274  CLAIMS    AGAINST    ESTATES.  429 

demurrer;  and  if  objection  be  made  that  the  assignor  of  a  claim 
not  assigned  by  indorsement  is  not  a  party  to  the  action,  leave 
shall  be  given  the  claimant  to  amend  by  making  him  a  party  to 
answer  to  his  interest  in  the  claim,  and  to  sue  out  process  against 
the  assignor  tO'  answer  in  that  behalf.  And  if  it  shall  be  shown 
to  the  court  that  any  person  is  bound  with  the  decedent  in  any 
contract  which  is  the  foundation  of  the  claim,  the  court  shall 
direct  that  the  claim  be  amended  by  making  such  person  a  defend- 
ant in  the  action,  and  process  shall  be  issued  against  and  served 
upon  him,  and  thereafter  the  action  shall  be  prosecuted  against 
him  as  a  co-defendant  with  such  executor  or  administrator,  and 
judgment  shall  be  rendered  accordingly.'*' 

While,  as  has  been  shown  in  the  preceding  section,  the  executor 
or  administrator  may  require  such  claim  to  be  brought  before  the 
court  in  the  mode  prescribed  by  the  statute,  but  he  is  not  bound 
to  do  so ;  he  may  make  full  appearance  and  give  the  court  juris- 
diction, by  pleading  to  an  action  on  such  claim.  And  where  he 
thus  waives  his  statutory  rights  and  demurs  to  a  claim,  as  an 
entirety,  which  consists  of  several  distinct  items,  his  demurrer 
will  not  be  sustained  if  any  one  of  such  items  states  a  good  cause 
of  action.*^    But  if  he  is  sued  on  a  claim  and  process  is  regularly 

'"Burns  R.  S.  1908,  §  2842.     Proof  fense,    although    the    defense    might 

of    the    execution    of    written    instru-  have  been  proven  without  pleading  it. 

ments   which    are   the    foundation   of  Sheeks  v.  Fillion,  3  Ind.  App.  262,  29 

claims,  and  of  the  assignments  there-  N.  E.  786. 

of,  must  be  made,  although  such  exe-  *^  Morrison  v.  Kramer,  58  Ind.  38 ; 

cution,   or  assignment,   is   not  denied  Niblack    v.    Goodman,    67    Ind.    174; 

under  oath.     Riser  v.  Snoddy,  7  Ind.  Stapp  v.  Messeke,  94  Ind.  423 ;  Ginn 

442,  65  Am.  Dec.  740;  Mahon  v.  Saw-  v.    Collins,  43   Ind.   271.    If,   after   a 

jer,    18   Ind.   IZ;    Barnett   v.    Cabinet  claim  has  been  transferred  to  the  issue 

Makers'  Union,  28  Ind.  254;  Cawoods  docket,   the   claimant,   without   objec- 

V.  Lee,  32  Ind.  44;  Jennings  v.  Mc-  tion  on  the  part  of  the  administrator, 

Fadden,  80  Ind.  531.    New  parties  de-  is  permitted  to  amend  the  statement 

fendant  can  only  be  made  where  such  by    introducing    therein    an    item    of 

parties   are   jointly   liable   on   a   con-  claim  based  upon  facts  accrued  after 

tract  with  the  decedent,  and  such  con-  the    claim    was    filed    in    the    clerk's 

tract  is  the  basis  of  the  claim.    Clay-  ofifice  and  was  placed  upon  the  docket, 

pool  V.   Gish,  108  Ind.  424,  9  N.   E.  upon  which   it  is  the  administrator's 

382.    It  is  error  to  sustain  a  demurrer  duty  to  allow  or  reject  claims,  the  de- 

to  an  answer  setting  up  a  good  de-  fendant  cannot,  by  answer  in  bar  of 


430 


INDIANA    PROBATE    LAW. 


§    274 


served  on  him  in  the  ordinaiy  manner,  he  may,  by  his  special 
appearance  thereto,  and  on  his  motion,  founded  on  affidavit, 
showing  that  the  claim  sued  on  had  never  been  filed  in  the  clerk's 
office  and  placed  upon  the  appearance  docket  as  by  law  required, 
obtain  a  dismissal  of  the  action.  The  statute  does  not  authorize 
such  a  suit,  but  a  demurrer  to  a  claim  for  this  reason  would  not 
be  available. ^- 

The  appearance  by  attorney  of  an  executor  or  administrator 
to  an  action  on  a  claim  against  his  decedent's  estate  is  sufficient.** 

To  carry  out  the  policy  of  the  law  and  avoid  a  multiplicity  of 
suits,  the  court  may,  under  proper  circumstances,  order  the  con- 
solidation of  claims  which  have  been  transferred  for  trial.-"* 

Not  only  may  an  ordinaiy  motion  for  a  new  trial  be  made  in 
case  of  claims  against  a  decedent's  estate,  but  an  application  for 


such  part  of  the  claim,  raise  an  ob- 
jection, which  he  has  so  waived,  to 
the  making  of  such  amendment. 
Sheeks  v.  Pillion,  3  Ind.  App.  262,  29 
N.  E.  786.  The  court,  of  its  own  mo- 
tion may  pass  upon  or  determine  the 
sufficiency  of  a  petition  to  allow  a 
claim  or  of  exceptions  to  a  report 
without  any  demurrer  or  motion  be- 
ing filed,  and  exceptions  taken  to  such 
action  of  the  court  presents  the  ques- 
tion for  review.  Goodbub  v.  Horn- 
ung,  127  Ind.  181,  26  N.  E.  770. 

''"Morgan  v.  Squier,  8  Ind.  511; 
Hayes  v.  Sykes,  120  Ind.  180,  21  N. 
E.  1080;  Hyatt  v.  Mavity,  34  Ind. 
415 ;  Morrison  v.  Kramer,  58  Ind.  38. 
Where,  after  the  transfer  from  the 
appearance  to  the  issue  docket,  of  a 
claim  against  an  estate,  an  additional 
statement  of  the  claim  is  made  at  a 
subsequent  term,  it  may  be  used  as  an 
amendment,  or  second  paragraph  of 
the  claim,  and  need  not  be  placed  on 
the  appearance  docket.  Wolfe  v.  Wil- 
sey,  2  Ind.  App.  549,  28  N.  E.  1004. 
In  support  of  a  claim  against  an  es- 
tate for  money  paid  on  an  execution 


against  the  decedent  in  his  lifetime,, 
the  return  on  the  execution,  showing 
a  payment  more  than  six  years  before 
the  filing  of  the  claim,  was  offered  in 
evidence  and  excluded.  Held,  that, 
if  error,  it  was  harmless.  Zeller  v. 
Griffith,  89  Ind.  80. 

^  Collins  V.  Rose,  59  Ind.  33 ;  Pres- 
ton V.  Sandford,  21  Ind.  156. 

"*  Patterson  v.  Eakin,  87  Va.  49,  12 
S.  E.  144;  Biron  v.  Edwards,  77  Wis. 
477,  46  N.  W.  813.  Where  the  plain- 
tiff filed  a  claim  against  the  dece- 
dent's estate  for  services  rendered 
her  and  her  administrator,  and  on  the 
same  day  filed  in  the  same  court  an- 
other claim  against  the  same  estate 
based  upon  a  contract  by  the  terms- 
of  which  the  decedent  agreed  to  con- 
vey to  the  plaintiff  certain  real  estate, 
and  alleging  her  refusal  to  do  so  and 
consequent  loss  to  the  plaintiff,  it  was 
proper  for  the  court  on  motion  ta 
consolidate  the  two  causes.  See 
§  279,  Burns'  R.  S.  1908.  Grant  v. 
Davis,  5  Ind.  App.  116,  31  N.  E.  587. 
See  Cunningham  v.  Packard,  6  Ind, 
App.  36,  32  N.  E.  334. 


§    2/5  CLAIMS    AGAINST    ESTATES.  43 1 

a  new  trial  for  cause  discovered  after  the  tenn  at  which  the  claim 
was  tried,  may  be  had  under  section  589,  Burns'  R.  S.  1908,  it  be- 
ing held  that  where  no  mode  of  procedure  is  specially  provided  by 
the  probate  statutes,  the  rules  of  procedure  in  civil  causes  may 
be  followed.®^ 

And  in  such  an  action  a  claimant  may  appeal  from  a  judgment 
against  him  in  the  trial  court.^*^  Although  the  administrator  may 
have  allowed  a  claim  the  court  may  require  and  hear  other  proof 
thereon.^^ 

§  275.  Pleadings  on  transfer  of  claim. — The  account  or 
claim  filed  against  an  estate  stands  as  the  plaintiff's  complaint  if 
the  claim  is  contested  by  the  personal  representative  of  the  dece- 
dent. Such  claim  as  filed  is  a  pleading  and  subject  to  the  same 
rules  of  construction  as  other  pleadings.  In  view  of  the  fact  that 
such  controversies  are  to  be  tried  as  other  civil  actions,  such 
pleadings  should  substantially  correspond  with  the  rules  upon 
that  subject  which  may  prevail  in  regard  to  the  system  of  plead- 
ing that  may  be  in  force  at  the  time.***  The  statute  does  not  re- 
quire a  regular  complaint  under  the  ordinar}^  rules  of  pleading, 
but  merely  a  succinct  statement  of  the  claim,  which  will  be  suffi- 
cient when  it  apprises  the  defendant  of  the  nature  of  the  claim, 
of  the  amount  demanded,  and  shows  enough  to  bar  another  action 
for  the  same  demand.** 

*■'  McConahey's  Estate  v.  Foster,  21  with  a  formal  complaint.     Hathaway 

Ind.  App.  416,  52  X.  E.  619.  v.  Roll,  81  Ind.  567;  Price  v.  Jones, 

^  Lindley  v.   Darnall,  24  Ind.  App.  105  Ind.  543,  5  N.  E.  683,  55  Am.  Rep. 

399,  56  X.  E.  861.  230;    Wolfe   v.   Wilsey,  2   Ind.   App. 

''  Lane  v.  Bowes,  32  Ind.  App.  330,  549,  28  X.  E.  1004 :  Garrigus  v.  Home 

67  X.  E.  1002.  &c.  .Missionary  Soc,  3  Ind.  App.  91, 

^Johnson  v.  Keot,  9  Ind.  252;  Gif-  28  X.  E.  1009,  50  Am.  St.  262.  Prom- 
ford  V.  Black,  22  Ind.  444.  In  an  ac-  issory  notes  executed  by  the  decedent, 
tion  against  a  decedent's  estate,  all  whether  due  or  not,  may  be  filed  as 
defenses  except  set-off  may  be  proved  claims  against  his  estate.  Maddox  v. 
without  plea,  and  the  defendant  has  Maddox,  97  Ind.  537. 
the  benefit  of  them,  though  he  plead  *"  Hannum  v.  Curtis,  13  Ind.  206; 
them  insufficiently.  Knippenberg  v.  Ginn  v.  Collins,  43  Ind.  271 ;  Dodds 
Morris,  80  Ind.  540.  A  note  executed  v.  Dodds,  57  Ind.  293 ;  Post  v.  Ped- 
by  the  decedent  may  be  filed  against  rick,  52  Ind.  490;  Bryson  v.  Kelley, 
an    estate    without    accompanying    it  53  Ind.  486;  Ramsey  v.  Fouts,  67  Ind. 


432 


INDIANA    PROBATE    LAW. 


§    275 


And  the  court,  in  one  case,  says :  "It  has  also  been  held,  and 
correctly  so,  we  think,  that  such  succinct  statement  should  contain 
all  such  facts  as  were  necessaiy  to  show  prima  facie  that  the  de- 
cedent's estate  was  lawfully  indebted  to  the  claimant,  or  it  would 
be  held  bad  on  demurrer  thereto,  for  want  of  sufficient  facts. "^'^ 

If  a  claim,  when  filed,  shows  the  cause  of  action  to  be  in  a  third 
person,  a  demurrer  should  be  sustained  to  such  claim."^ 

In  all  matters  pertaining  to  the  ordinary  settlement  of  an 
estate,  the  administrator  is  the  proper  representative  of  the  cred- 
itors in  the  prosecution  and  defense  of  actions  affecting  their  in- 
terests in  the  estate,  and  is,  as  to  them,  the  trustee  of  an  express 
trust. "- 

While  the  statute  permits  matters  of  defense  to  be  gi\en  in 
evidence  without  plea  in  trials  of  claims  against  the  estate  of  a 
decedent,  yet,  if  the  administrator  or  executor  desires  to  make 
any  affirmative  defense,  or  seeks  affirmative  relief  in  such  case, 
he  should  file  an  affirmative  pleading."^ 


78;  Wright  v.  Jordan,  71  Ind.  1; 
Hathaway  v.  Roll,  81  Ind.  567;  Davis 
V.  Huston,  84  Ind.  272;  Hileman  v. 
Hileman,  85  Ind.  1 ;  Stapp  v.  Messeke, 
94  Ind.  423;  Strieker  v.  Barnes,  122 
Ind.  348,  23  N.  E.  263;  Sherwood  v. 
Thomasson,  124  Ind.  541,  24  N.  E. 
334;  Lockwood  v.  Robbins,  125  Ind. 
398,  25  N.  E.  455 ;  Miller  v.  Eldridge, 
126  Ind.  461,  27  N.  E.  132;  Scholz  v. 
Schneck,  174  Ind.  186,  91  N.  E.  730. 

'» Windell  v.  Hudson,  102  Ind.  521, 
2  N.  E.  303;  Huston  v.  First  Nat. 
Bank,  85  Ind.  21;  Moore  v.  Stephens, 
97  Ind.  271.  When  a  claim  is  filed 
against  an  estate  it  is  not  necessary 
to  issue  a  summons  for  the  adminis- 
trator, nor  to  formally  make  him  a 
party,  nor  to  indorse  his  name  on  the 
claim  as  a  defendant.  Even  though 
such  were  necessary,  a  full  appear- 
ance by  the  administrator  is  a  waiver 
of  them.  Taggart  v.  Tevanny,  1  Ind. 
App.  339,  27  N.  E.  511. 


"^  Pence  v.  Aughe,  101  Ind.  317; 
Wilson  V.  Galey,  103  Ind.  257,  2  N.  E. 
736;  Walker  v.  Heller,  104  Ind.  327, 
3  N.  E.  114.  On  trial  of  a  claim 
against  a  decedent's  estate  on  a  prom- 
issory note,  no  special  plea  is  neces- 
sary to  raise  the  issue  that  decedent 
was  a  surety;  Burns'  R.  S.  1908, 
§  2842,  not  requiring  an  administra- 
tor to  plead  anything  by  way  of  an- 
swer except  a  set-off  or  counter- 
claim. Dick  V.  Dumbauld,  10  Ind. 
App.  508,  38  N.  E.  78.  A  statement 
of  a  claim  against  an  estate  alleging 
that  a  certain  amount  "is  now  justly 
due  and  owing  to  affiant,  after  mak- 
ing all  proper  deductions,"  is  suffi- 
cient after  verdict.  Brown  v.  Sulli- 
van, 3  Ind.  App.  211,  29  N.  E.  453. 

"-  Blankenbaker  v.  Bank,  85  Ind. 
459 ;  Vogel  v.  Vogler,  78  Ind.  353. 

°'  Hunt  V.  Osborn,  40  Ind.  App.  646, 
82  N.  E.  933. 


276  CLAIMS  AGAINST  ESTATES.  433 


An  executor  or  administrator  should  make  all  proper  and  just 
defenses  against  claims,  but  it  is  not  required  of  them  that  they 
should  attempt  the  defeat  of  claims  which  they  know  to  be  just. 

As  in  civil  actions,  any  statement  of  a  claim  against  a  dece- 
dent's estate,  whether  filed  in  the  form  of  a  complaint  or  not,  may 
be  tested  by  demurrer.  And  the  same  principle  applies  to  all 
pleadings  in  such  case.  It  is  not  necessary  for  the  executor  or 
administrator  to  plead  any  special  defense  except  set-ofT  and 
counter-claim,  but  if  he  does  the  sufficiency  of  such  special  pleas 
may  be  tested  by  demurrer.^* 

§  276.  Pleading  special  defenses. — From  the  statute  as  it 
now  is,  it  will  be  seen  that,  except  as  to  set-off  or  counter-claim, 
special  pleadings  in  the  trial  of  claims  is  not  required,  nor  are 
they  prohibited.  In  such  a  case  the  parties  may,  if  they  choose, 
plead  specially;  and  if  they  elect  to  and  do  plead  specially,  they 
will  be  bound  by  their  special  pleadings  and  the  rulings  of  the 
court  thereon,  to  the  same  extent  as  if  their  special  pleadings  were 
required  by  law.^'  The  practice  of  filing  special  pleadings  in  such 
cases  was  allowed  in  the  courts  of  common  pleas  of  this  state, 
and  was,  with  the  jurisdiction  of  such  courts,  transferred  to  the 
circuit  courts,  and  may  now  be  considered  as  the  established  law 
of  the  state.^' 

In  a  judicial  construction  of  this  statute,  as  it  now  stands,  it 
has  been  held  that  the  statute  regulates  and  controls  the  manner 
and  mode  of  the  trial  of  claims  against  the  decedents'  estates,  and 
not  merely  the  time  when  the  claim  shall  stand  for  trial ;  and  that 

""McCulloch  V.  Smith,  24  Ind.  App.  ''Alexander  v.   Alexander,  48  Ind. 

536,  57  N.   E.   143,   79  Am.   St.  281;  559;  Griffin  v.  Hodshire,  119  Ind.  235, 

Sheeks  v.  Pillion,  3  Ind.  App.  262,  29  21    N.    E.    741 ;    Pence   v.   Young,   22 

N.  E.  786;  Simons  v.  Beaver,  15  Ind.  Ind.  App.  427,  53  N.  E.  1060;  Bowen 

App.  510,  43  N.  E.  478;  McBride  v.  v.  O'Hair,  29  Ind.  App.  466,  64  N.  E. 

Ulmer,   30   Ind.   App.    154,  65    N.    E.  672;  Alerding  v.  Allison,  31  Ind.  App. 

610;  Trees  v.  Millikan,  43  Ind.  App.  397,  68  N.  E.  185;  Indiana  Trust  Co. 

256,  85  N.  E.  123.  v.   Byram,  36  Ind.   App.  6,  72  N.   E. 

"'  Niblack  V.  Goodman,  67  Ind.  174 ;  670.  73  N.  E.  1094. 
Castetter   v.    State,   ex   rel,    112   Ind. 
445.  14  X.  E.  388. 


28— Pro.  L.wv. 


434  INDIANA  PROBATE  LAW.  §  276 

in  such  cases  special  defenses  shall  be  pleaded,  the  same  as  in 
other  civil  cases  pending.^^ 

However,  in  one  case  the  court,  in  speaking  of  the  effect  of 
this  statute,  says  that  it  is  to  authorize  "an  executor  or  admin- 
istrator to  prove  any  defense  to  the  claim,  except  a  set-oft'  or 
counter-claim,  without  special  plea.  It  contemplates,  however, 
that  an  executor  or  administrator  may  plead  any  special  defense, 
as  in  other  cases,  and  that  a  defense  so  pleaded  may  be  tested  by 
demurrer  as  in  other  cases.""^ 

If  claims  placed  upon  the  issue  docket  are  to  stand  for  trial  as 
other  civil  actions  pending  in  court,  and  if  "the  trial  of  such  claim 
shall  be  conducted  as  in  other  civil  cases,"  and  if  these  statutes 
regulate  and  control  the  manner  and  mode  of  the  trial  of  claims, 
and  not  merely  the  time  when  a  claim  shall  stand  for  trial,  there 
would  seem  to  be  no  good  reason,  either  in  law  or  principle,  why 
special  defenses  should  not  be  required  in  such  cases  as  in  actions 
under  the  civil  code.  It  is  safe  practice,  and  the  better  practice,  to 
file  in  such  actions  such  special  pleas  as  are  required  by  the  code 
to  be  filed  in  civil  actions. 

In  trials  of  claims  against  estates  prior  to  February  4,  1881, 
it  has  been  repeatedly  held  by  the  Supreme  Court  that  under  the 
evidence  in  the  case  the  statute  of  limitations  might  be  enforced 
without  specially  pleading  it.^**  But  between  that  time  and  the 
time  when  the  revision  of  1881  went  into  effect,  September  19, 

"'Jennings    v.    McFadden,    80    Ind.  penberg  v.  Morris,  80  Ind.  540;  Per- 

531.  rill  V.  Nichols,  89  Ind.  444. 

°*  Castetter   v.    State,    112   Ind.   445,  Every  claim  against  an  estate  must 

14   N.   E.   388.     All   defenses,   except  be  brought  within  seven  and  one-half 

set-ofF    and    counterclaims,    may    be  years    after    it    accrues,    unless    the 

proven  without  being  pleaded.     When  claimant    is    under    some    disability; 

special  defenses  are  pleaded  they  may  hence,    to    a    claim    upon    an    account 

be    tested    by    demurrer.      Griffin    v.  against   an   intestate's   estate,   a   plea, 

Hodshire,  119  Ind.  235,  21  N.  E.  741.  that  the  cause  of  action  did  not  ac- 

It  is  not  necessary  to  plead  the  stat-  crue  within  six  years  before  bringing 

ute  of  limitations  in  order  to  obtain  the    action,    is    bad.      Knippenberg   v. 

the  benefit  thereof.     Zeller  v.  Griffith,  Morris,     80     Ind.     540;     Emerick    v. 

89  Ind.  80.  Chesrown,   90   Ind.    47;    Epperson   v. 

"'Niblack  v.  Goodman.  67  Ind.  174;  Hostetter,  95  Ind.  583. 
Parker  v.    Siple,  76  Ind.  345 ;   Knip- 


§  2/6  CLAIMS  AGAINST  ESTATES.  435 

1 881,  while  the  act  of  February  4  above  mentioned  was  the  only 
law  upon  the  subject,  it  was  decided  that  under  this  law,  to  make 
the  statute  of  limitations  available  as  a  defense  in  such  actions,  it 
was  necessary'  to  plead  it  specially,  as  in  other  cases/ 

An  account  accruing  in  the  lifetime  of  a  decedent  falls  within 
the  six-year  statute  of  limitations,  and  if  the  statute  begins  to  run 
before  the  death  of  the  debtor,  its  running  is  not,  in  the  absence 
of  some  statuton,'  provision,  suspended  by  his  death,  or  by  the 
failure  to  appoint  an  administrator  for  his  estate.^ 

In  pleading  any  statute  of  limitations  in  such  actions  it  is  neces- 
san-  to  consider  and  construe  with  such  statute  §  300,  Burns'  R.  S. 
1908,  which  provides  that  "if  any  person,  entitled  to  bring,  or 
liable  to,  any  action,  shall  die  before  the  expiration  of  the  time 
limited  for  the  action,  the  cause  shall  sundve  to  or  against  his 
personal  representatives,  and  may  be  brought  at  any  time  after 
the  expiration  of  the  time  limited,  within  eighteen  months  after 
the  death  of  such  person."  These  two  statutes  must  be  construed 
together,  and  the  latter  may  enlarge  the  time  prescribed  by  the 
former,  in  which  an  action  may  be  brought  against  a  decedent's 
estate,  if  not  barred  at  the  time  of  the  decedent's  death.  If  the 
decedent  dies  less  than  eighteen  months  before  the  expiration 
of  the  time  limited  for  the  bringing  of  the  action  the  time  is  ex- 
tended. How  long,  depends  upon  the  time  when  the  decedent 
dies;  and  under  this  section,  while  the  ordinary  period  of  limita- 
tion may  possibly  be  enlarged,  it  can  never  be  diminished  or  ab- 
breviated in  any  case.^ 

A  part  payment  made  by  one  who  is  indebted  to  the  estate  of  a 
decedent  to  a  person  who  is  not  at  the  time,  but  is  afterwards, 
appointed  administrator  of  such  decedent's  estate,  is  not  sufficient 
to  take  such  debt  out  of  the  statute  of  limitations.     The  payment 

^  Candy  v.  Coppock,  85  Ind.  594.  ^  Hildebrand  v.  Kinney,  172  Ind. 
The  defense  of  the  statute  of  limita-  447,  87  X.  E.  832;  Wood  on  Limita- 
tions is  available  to  an  administrator  tions,  §  6. 

or    executor   without    being    specially  '  Hiatt  v.  Hough,  11  Ind.  161;  Har- 

pleaded.     Jennings   v.    ^McFadden,  80  ris  v.  Rice,  66  Ind.  267;  Knippenberg 

Ind.  531;  Candy  v.  Coppock,  85  Ind.  v.   Morris,  80  Ind.  540;   Epperson  v. 

594 ;    Zeller   v.    Griffith,    89   Ind.   80 ;  Hostetter,  95  Ind.  583. 
Epperson  v.  Hostetter,  95  Ind.  583. 


436  INDIANA  PROBATE  LAW.  §  2/6 

must  be  made  to  the  creditor,  or  to  some  one  lawfully  acting  for 
him.* 

The  funeral  and  burial  expenses,  like  taxes,  and  the  expenses 
of  administering  the  estate,  are  not  debts  of  the  decedent  in  such 
a  sense  as  will  make  the  statute  of  limitations  applicable  to  them.^ 

The  statute  of  limitations  does  not  begin  to  run  against  a  claim 
for  work  perfomied  under  an  agreement  that  the  employer  will 
provide  payment  therefor  in  his  will,  until  after  the  death  of  the 
employer  or  until  the  employe  ceases  work  under  the  agreement." 

A  statement  of  a  claim  is  not  bad,  or  subject  to  a  demurrer,  for 
failing  to  state  the  date  when  the  claim  accrued.  If  barred  by 
the  statute  of  limitations,  this  is  a  matter  of  defense.'^ 

The  Supreme  Court  have  said  that  it  is  doubtful  whether  the 
executor  or  administrator  can,  by  his  promise,  take  a  debt  of  his 
decedent  out  of  the  statute  of  limitations,  and  whether  he  is  not 
bound  to  plead  such  statute  in  all  cases  where  it  can  be  made  avail- 
able.^ 

Ordinarily  payment  is  a  defense  which,  to  be  available,  must 
be  specially  pleaded,  but  the  rule  is  different  in  claims  against  the 
estate  of  a  decedent.  A  general  plea  of  payment  to  a  claim  against 
an  estate  is  good  without  stating  the  time  when  such  payment 
was  made.®  And  the  payment  of  a  less  sum  than  the  whole 
amount  due  cannot  constitute  a  good  accord  and  satisfaction,  nor 
is  it  a  good  plea  of  payment  as  to  the  whole  sum  alleged  to  be  due. 
No  question  is  better  settled  than  that  a  receipt  may  be  explained 
or  contradicted  by  parol  evidence ;  and  a  material  error  or  mistake 
in  computing  the  amount  due  on  any  instrument  of  writing  may, 
as  between  the  parties  thereto,  be  corrected,  and  that  although 

*  Kisler  V.  Sanders,  40  Ind.  78 ;  Mc-  '  Riser   v.    Snoddy,    7    Ind.    442,   65 

Bride  v.  Ulmer,  30  Ind.  App.  154,  65  Am.  Dec.  740. 

N.  E.  610.  'Epperson    v.    Hostetter,    95     Ind. 

^  Hildebrand    v.    Kinney,    172    Ind.  583.     If  it  is  desired  to  have  the  time 

447,  87  N.  E.  832.  more   definitely   fixed   the  practice   is 

°  Purviance    v.    Purviance,    14    Ind.  by  motion  to  make  more  specific  not 

App.  269,  42  N.  E.  364.  by  demurrer. 

'  Purviance    v.    Purviance,    14    Ind.  ' 
App.  269,  42  N.  E.  364. 


§  277  CLAIMS  AGAINST  ESTATES.  437 

a  full  settlement  may  have  been  made  and  a  receipt  in  full  pay- 
ment of  the  claim  given." 

The  defense  of  either  full  or  of  partial  payment  may  be  set  up 
without  special  plea." 

§277.  Set-off  and  counter-claim. — Set-off  and  counter- 
claim are  the  only  two  defenses  the  executor  or  administrator 
must  plead  specially  on  trials  of  claims  against  the  estate  of  his 
decedent.  In  the  interest  of  the  speedy  and  least  expensive  settle- 
ment of  decedents'  estates,  the  law  contemplates  a  simple  and 
direct  trial  in  cases  of  claims  against  estates  and  a  final  disposi- 
tion of  all  matters  in  controversy  between  the  administrator  and 
the  claimant.  It  will  be  noticed  that  the  affidavit  the  statute  re- 
quires a  creditor  to  attach  to  his  claim  before  filing  must  exclude 
the  existence  of  any  set-offs  or  deductions.  If  all  set-offs  and 
counter-claims  are  honestly  and  correctly  disclosed  by  the  claim 
as  filed,  the  trial  is  a  simple  matter.  But  if  they  are  not  disclosed 
by  the  claim  itself,  then  it  is  incumbent  on  the  executor  or  ad- 
ministrator to  set  them  up. 

The  reason  why  set-off  and  counter-claim  are  not  provable 
without  plea  is  that  neither,  strictly  speaking,  is  a  defense.  Each 
is  in  the  nature  of  a  cross-action,  asserting  a  demand  against  the 
claimant,  and  seeking  judgment  against  him  as  upon  an  original 
action.  Set-off  is  a  cross-demand  allowed  only  in  actions  for 
money  demands  upon  contract,  and  must  consist  of  matter  aris- 
ing out  of  debt,  duty,  or  contract,  held  by  the  defendant  at  the 
time  the  suit  was  commenced,  and  matured  at  or  before  the  time 
it  is  offered,"  while  counter-claim  is  any  matter  arising  out  of 
or  connected  with  the  cause  of  action  which  might  be  the  subject 
of  an  action  in  favor  of  the  defendant,  or  which  would  tend  to  re- 
duce the  plaintiff's  claim  or  demand  for  damages.  ^^ 

Counter-claim  differs  from  set-off  in  this,  that  counter-claim 
must  arise  out  of  and  be  connected  with  the  subject-matter  upon 
which  the  claim  or  complaint  is  based,  while  a  set-off  is  based 

^»  Markel  v.  Spitler,  28  Ind.  488.  '=  Burns'  R.  S.  1908,  §  353. 

"  Simons  V.    Beaver,    15    Ind.   App.         ''  Burns'  R.  S.  1908,  §  355. 
510,  43  N.  E.  478. 


438  INDIANA  PROBATE  LAW.  §  277 

upon  some  cross-demand  against  the  plaintiff  which  is  entirely 
independent  of  and  disconnected  with  the  subject-matter  of  the 
complaint,  except  that  it  must  be  of  the  same  general  class  and 
limited  to  money  demands  arising  out  of  contracts. 

A  set-off  may  be  pleaded  as  a  defense,  although  the  claim  upon 
which  it  is  based  is  barred  by  the  statute  of  limitations,  the  rule 
being  that  a  set-off  is  not  barred  so  long  as  the  claim  against 
which  it  is  pleaded  is  not  barred.^'* 

The  dismissal  of  the  claim  after  a  set-off  or  counter-claim  has 
been  pleaded  thereto  by  the  executor  or  administrator  does  not 
prevent  such  executor  or  administrator  from  proceeding  with  the 
trial  and  obtaining  a  judgment  against  the  claimant  upon  such 
set-off  or  counter-claim." 

The  principle  of  mutuality  requires  that  the  debts  should  not 
only  be  due  to  and  from  the  same  person,  but  in  the  same  ca- 
pacity ;  therefore  a  debt  due  from  the  decedent  in  his  lifetime  can- 
not be  set  off  against  a  claim  in  the  hands  of  his  administrator 
which  originated  in  favor  of  the  estate  of  the  intestate  after  his 
death.^« 

Where  a  cross-demand  against  an  estate  is  a  proper  set-off  to 
a  claim  in  favor  of  the  estate,  the  fact  that  it  was  not  due  at  the 
time  of  the  decedent's  death  does  not  deprive  the  holder  of  such 
demand  of  the  benefit  of  the  set-off  if  his  demand  be  due  at  the 
time  it  is  pleaded  as  a  set-off.  But  the  contingent  liability  of  one 
who  is  surety  for  the  decedent  at  the  time  of  his  death  is  not  such 
a  cross-demand,  although  as  such  surety  he  was  afterwards  com- 
pelled to  pay  the  debt  of  the  decedent.^^ 

The  right  to  a  set-off  to  one  sued  upon  a  demand  due  an  estate 
is  not  affected  by  the  solvency  or  insolvency  of  the  estate. ^^ 

"  Burns'  R.  S.  1908,  §  Z7Z ;  Rennick  Whitcomb   v.    Stringer,    160   Ind.   82, 

V.  Chandler,  59  Ind.  354;  Warring  v.  66  N.  E.  443. 

Hill,  89  Ind.   497;   Peden  v.  Gavins,  "  Dayhufif  v.  Dayhuflf,  27  Ind.  158; 

134  Ind.  494,  34  N.  E.  7,  39  Am.  St.  Harte  v.  Houchin,  50  Ind.  327;  Ferris 

276.  V.   Mullan,  56  Ind.   164;   Welborn  v. 

"  Burns  R.  S.  1908,  §  2843 ;  Judd  v.  Coon,  57  Ind.  270. 

Gray,    156   Ind.   278,   59   N.    E.    849;  "  Convery  v.  Langdon,  66  Ind.  311. 

"  Convery  v.  Langdon,  66  Ind.  311. 


§    2/8  CLAIMS    AGAINST    ESTATES.  439 

A  set-off  may  be  asserted  as  a  defense,  though  a  separate  action 
could  not  be  maintained  upon  it;  so  where  a  debtor  has  had  no 
opportunity  to  assert  a  claim  in  his  favor  as  a  set-ofif  against  a 
debt  due  from  him  to  an  estate,  pending  the  administration  of 
such  estate,  he  may  do  so  after  final  settlement,  in  a  suit  brought 
against  him  on  his  debt,  by  a  distributee.^^ 

The  setting  off  debts  owing  by  heirs  or  legatees  against  their 
legacies  or  distributive  shares  is  a  doctrine  well  established  in  this 
state,  but  is  perhaps  more  properly  discussed  in  connection  with 
the  subject  of  distribution.  The  doctrine  is  rather  one  of  re- 
tainer than  set-off,  the  law  investing  the  executor  or  administra- 
tor with  the  right  to  retain  and  apply  a  distributee's  share  of  the 
funds  in  his  hands  to  the  payment  and  satisfaction  of  a  debt 
owing  to  the  estate  from  such  distributee.  The  right  is  founded 
on  the  principle  that  the  administrator  or  executor  has  an  equi- 
table lien  on  the  share  of  the  distributee  or  legatee  until  the  latter 
has  discharged  the  obligation  which  he  owes  to  the  estate.-^ 

Where  an  executor  or  administrator  is  himself  indebted  to  the 
estate,  the  court,  in  making  an  allowance  to  such  officer  out  of 
the  funds  of  the  estate,  for  his  services,  may  order  that  the  sum 
so  allowed  shall  not  be  credited  to  him  on  his  account  with  the 
estate,  but  that  it  should  be  applied  by  such  executor  or  admin- 
istrator upon  his  indebtedness  to  the  estate. ^^ 

§  278.  Claim  based  on  note — Attorney  fees. — In  an  action 
upon  a  claim  against  an  estate  founded  upon  a  note  or  written 
contract  executed  by  the  decedent  in  his  lifetime,  the  execution 
of  such  note  or  contract  must  be  proved ;  and  the  failure  to  ob- 
ject to  the  introduction  of  such  instrimient  in  evidence  does  not 
waive  this  proof.  The  execution  of  the  instrument  is  a  fact  in 
issue,  and  as  necessary  to  be  proved  as  the  introduction  of  the 
note  or  contract  in  evidence.    The  plea  of  non  est  factum  by  the 

"  Huffman  v.  Wyrick,  5  Ind.  App.  v.   State,  43  Ind.  App.  387,  84  N.  E. 

183,  31  N.  E.  823.  161. 

="  Holmes   v.    McPheeters,    149   Ind.         =^  Moore  v.  State,  43  Ind.  App.  387, 

587,  49  N.  E.  452;  Weaver  v.  Gray,  84  N.  E.  161. 
Z7  Ind.  App.  35,  76  N.  E.  795 ;  Moore 


440 


INDIANA    PROBATE    LAW. 


§    278 


executor  or  administrator  in  such  case  need  not  be  sworn  to.  It 
is  reasonable  to  require  the  maker  of  a  note  or  other  written  in- 
strument to  deny  the  instrument  signed  with  his  signature,  if  at 
all,  under  oath,  for  he  is  presumed  to  know  what  instmments  he 
has  signed  and  whether  the  signature  is  his  or  not ;  but  not  so  as 
to  others  not  purporting  to  be  the  makers  of  such  written  instru- 
ments.-- 

The  law  puts  in  a  general  denial  for  an  administrator  or  ex- 
ecutor in  actions  on  claims,  and  under  this  the  execution  of  a  note 
is  as  much  an  issue  as  if  put  in  issue  by  a  special  plea  and  the 
burden  of  establishing  its  due  execution  rests  upon  the  claimant. ^^ 

It  has  been  held  that  a  note  does  not  lose  its  negotiability  by 
being  filed  and  allowed  as  a  claim  against  a  decedent's  estate.-' 

The  question  as  to  the  allowance  of  attorney's  fees  on  a  note 


"Riser  v.  Snoddy,  7  Ind.  442,  65 
Am.  Dec.  740;  Mahon  v.  Sawyer,  18 
Ind.  72>;  Barnett  v.  Cabinet  Makers' 
Union,  28  Ind.  254;  Cawoods  v.  Lee, 
Z2  Ind.  44;  Wells  v.  Wells,  71  Ind. 
509.  In  an  action  against  decedent's 
estate  upon  a  written  instrument,  its 
execution  by  the  decedent  must  be 
proved,  though  not  denied  under 
oath.  Ruddell  v.  Tyner,  87  Ind.  529. 
Under  the  act  of  February  14,  1881, 
concerning  the  allowance  of  claims 
against  decedents'  estates  (Acts  1881, 
p.  20),  where  a  claim  was  filed 
against  a  decedent's  estate  founded 
upon  the  decedent's  note,  payable  to 
a  third  person,  by  whom  it  was  as- 
signed by  indorsement  to  the  claim- 
ant, and  the  execution  of  the  assign- 
ment was  not  put  in  issue  by  a  plead- 
ing under  oath,  the  assignment  was 
admissible  in  evidence  without  proof 
first  made  of  its  execution.  It  is 
otherwise  under  §§  370  and  2842, 
Burns'  R.  S.  1908.  Jennings  v.  Mc- 
Fadden,  80  Ind.  531;  Digan  v.  Man- 
del,  167  Ind.  586,  79  N.  E.  899,  119 
Am.    St.   515;    Bowen   v.    O'Hair,   29 


Ind.  App.  466,  64  N.  E.  672;  Indiana 
Trust  Co.  V.  Byram,  36  Ind.  App.  6, 
72  N.  E.  670,  73  N.  E.  1094. 

"^Kennedy  v.  Graham,  9  Ind.  App. 
624,  35  N.  E.  925,  Z7  N.  E.  25. 
Where  J.  S.,  one  of  the  payees  of 
the  note,  was  introduced  as  a  witness 
by  the  defendant,  the  credit  of  the 
witness  could  not  be  impeached  by 
proof  of  bad  character.  The  defend- 
ant was  under  no  obligation  to  intro- 
duce her  as  a  witness,  and  had  no 
reason  to  expect  favorable  testimony 
from  her.  Diffenderfer  v.  Scott,  5 
Ind.  App.  243,  2,2  N.  E.  B7.  In  an  ac- 
tion upon  a  promissory  note  executed 
by  a  decedent,  payable  out  of  his  es- 
tate after  his  death,  it  is  error  to 
admit  evidence  of  declarations  of  the 
decedent  in  reference  to  the  note 
made  after  its  execution,  and  in  ab- 
sence of  the  paj^ee.  In  such  case  evi- 
dence of  a  valuable  consideration  is 
necessary  to  support  the  note.  Har- 
court  V.  Harcourt,  89  Ind.  104. 

'*  Weathered  v.   Smith,  9  Tex.  622, 
60  Am.  Dec.  186. 


§  2/8  CLAIMS  AGAINST  ESTATES.  441 

filed  against  an  estate,  where  the  claim  is  allowed  by  the  adminis- 
trator without  dispute  or  contest,  has  never  been  directly  decided 
in  this  state.  In  one  case  the  face  of  the  claim  and  interest  was  al- 
lowed, but  no  attorney's  fees.  On  the  transfer  of  the  claim  to  the 
issue  docket  to  try  the  question  of  attorney's  fees,  such  fees  were 
allowed  by  the  court,  but  its  decision  does  not  rest  upon  the  ab- 
stract right  to  attorney's  fees  in  all  cases,  but  rather  on  the  par- 
ticular facts  of  that  case.  The  court  uses  this  lang-uage :  ''We  can 
see  no  reason  why  the  claimant  should  not  recover  attorney's  fees 
when  the  acts  or  default  of  the  administrator  renders  it  necessary 
for  him  to  employ  an  attorney  and  incurs  a  liability  for  attorney's 
fees.  A  different  question  would  be  presented  in  case  of  an  un- 
disputed and  unsecured  promissory  note  where  neither  the  de- 
cedent nor  the  administrator  is  at  fault,  and  where  all  that  is  re- 
quired of  the  claimant  is  to  file  the  same  in  the  office  of  the  clerk, 
as  required  by  the  statute.""" 

The  stipulation  in  a  note  to  pay  attorney  fees  is  in  the  nature 
of  a  contract  of  indemnity  and  is  enforceable  only  when  the 
maker  commits  a  breach  of  the  provisions  of  the  note.  A  note 
containing  such  a  stipulation  filed  before  maturity  as  a  claim 
against  the  estate  of  the  deceased  maker  and  allowed  by  his  ad- 
ministrator does  not  carry  any  right  to  attorney  fees,  and  the  ad- 
ministrator was  sustained  for  refusing  to  allow  such  fees.-° 

The  Supreme  Court  has  frequently  decided  that  where  a  claim, 
based  upon  a  note  containing  a  promise  to  pay  attorney  fees,  is 
filed  against  an  estate  and  not  allowed,  but  is  contested  by  the  ad- 
ministrator, the  claimant,  if  he  recovers,  is  entitled  to  recover  at- 
torney fees.  The  court  say:  "We  can  see  no  reason  why  the 
claimant  should  not  recover  attorney  fees  when  the  acts  or  default 

''Jewett  V.  Hurrle  121  Ind.  404,  23  the    sale,    but    the    administrator,    in- 

N.  E.  262.     In  this  case  the  note  was  stead    of    paying    him,    retained    the 

secured  by  chattel  mortgage,  and  the  money,  and  thus  compelled  the  cred- 

mortgaged  property  had  been  sold  by  itor  to  come  into  court  and  obtain  an 

order    of    the    court,    free    from    the  order  on  him  to  pay  it. 

lien,  to  pay  the  debt  represented  by  ''St.   Joseph   County   Sav.   Bank  v. 

the  note,   and  the  creditor  was  enti-  Randall,  Z7  Ind.  App.  402,  76  N.   E. 

tied  to  his  pay  from  the  proceeds  of  1012. 


442 


INDIANA    PROBATE    LAW. 


§    278 


of  the  administrator  renders  it  necessary  for  him  to  employ  an 
attorney,  and  incurs  a  Hability  for  attorneys'  fees.""^ 

As  a  rule,  any  obligation  that  can  be  enforced  against  a  per- 
son while  living  may  be  enforced  against  such  person's  estate,  and 
a  stipulation  in  a  contract  to  pay  attorney's  fees  is  within  this 
rule.-** 

Such  stipulations,  however,  are  intended  simply  as  an  indem- 
nity to  indemnify  the  payee  for  such  reasonable  sum  only  as  he 
may  be  compelled  to  pay,  or  become  liable  for,  to  an  attorney  at 
law  for  services  rendered  by  him  to  induce  or  compel  the  payers 
to  fulfill  their  contract."'' 


-' Jewctt  V.  Hurrlc,  121  Ind.  404,  23 
N.  E.  262;  Hanna  v.  Fisher,  95  Ind. 
383;  Bond  v.  Orndorf,  11  Ind.  583. 
Where  a  promissory  note,  stipulating 
for  the  payment  of  attorney's  fees,  is 
tiled  against  a  decedent's  estate,  the 
claimant  is  entitled  to  introduce  evi- 
dence of  the  value  of  attorney's  fees 
without  any  formal  demand  in  such 
demand  for  judgment.  Hanna  v. 
Fisher,  95  Ind.  383.  The  agreement 
to  pay  attorney's  fees  is  a  part  of  the 
contract,  and  the  appellee  is  entitled 
to  recover  according  to  the  terms. 
Price  V.  Jones,  105  Ind.  543,  5  N.  E. 
683,  55  Am.  Rep.  230;  Glenn  v.  Por- 
ter, 72  Ind.  525.  Attorney's  fees  pro- 
vided for  in  a  contract  are  not  costs, 
nor  in  the  nature  of  costs.  They 
form  a  part  of  the  cause  of  action, 
and  are  recovered  because  they  are 
provided  for  in  the  contract  sued  on. 
Groves  v.  Wiles,  1  Ind.  App.  174,  27 
N.  E.  309.  The  stipulation  for  the 
payment  of  attorney's  fees  becomes 
operative,  and  can  be  enforced  only 
when  expenses  have  been  actually  and 
necessarily  incurred  in  the  emploj^- 
ment  of  an  attorney  for  the  enforce- 
ment of  collection,  consequent  upon 
the  failure  of  the  payer  to  keep  hb 
engagement,    and    then    only    to    the 


extent  actually  paid  or  to  be  paid,  or 
reasonably  chargeable.  Goss  v.  Bow- 
en,  104  Ind.  207,  2  N.  E.  704 ;  Harvey 
V.  Baldwin,  124  Ind.  59,  24  N.  E.  347, 
26  N.  E.  222;  Starnes  v.  Schofield,  5 
Ind.  App.  4,  31  N.  E.  480;  Moore  v. 
Staser,  6  Ind.  App.  364,  32  N.  E.  563, 
'iZ  N.  E.  665 ;  Boyd  v.  Smith,  15  Ind. 
App.  324,  43  N.  E.  1056. 

^Bond  V.  Orndorf,  11  Ind.  583. 
Where  a  surety,  in  paying  a  promis- 
sory note  executed  by  himself  and 
his  deceased  principal,  is  not  required 
to  pay  the  attorney's  fees  for  which 
the  note  provides,  he  is  not  entitled 
to  recover  such  attorney's  fees  from 
his  principal's  estate,  but  he  is  en- 
titled to  recover  the  amount  paid  by 
him,  with  interest,  and  no  more,  his 
cause  of  action  being  not  upon  the 
note,  but  upon  an  implied  promise  of 
indemnity.  Gieseke  v.  Johnson,  115 
Ind.  308,  17  N.  E.  573.  An  attorney 
employed  by  residuary  legatees,  per- 
forming services  beneficial  to  the 
estate,  cannot  maintain  a  claim 
against  the  estate  therefor.  It  is 
otherwise  where  the  employment  is 
by  the  administrator.  Scott  v. 
Dailey,  89  Ind.  477. 

^Kennedy  v.  Richardson,  70  Ind. 
524;  Goss  v.  Bowen,  104  Ind.  207,  2 


§  279  CLAIMS  AGAINST  ESTATES.  443 

Attorney's  fees  may  be  recovered  on  a  claim  against  the  estate 
of  a  decedent  based  upon  a  promise  to  pay  contained  in  a  mort- 
gage signed  by  the  decedent  and  his  wife  to  secure  a  note  signed 
by  the  wife  alone.^*' 

§  279.  Widow  and  heirs  not  necessary  parties. — A  creditor 
of  a  decedent's  estate,  in  the  prosecution  of  an  ordinary  claim 
against  the  executor  or  administrator  of  such  estate,  cannot  join 
the  widow  and  heirs  of  the  decedent  as  parties  defendant.  They 
are  not  necessary  or  proper  parties  to  a  full  prosecution  of  such 
claim.  The  executor  or  administrator  represents  their  interest 
in  the  estate,  and  is  bound  to  make  all  needed  defense  to  such 
claim.  It  would  be  very  inconvenient  to  bring  them  all  in  their 
own  proper  persons,  before  the  court,  so  they  are  allowed  to  ap- 
pear by  their  representatives;  and  thus  an  adequate  protection 
is  provided  for  their  interests,  and  the  spirit  of  the  general  rule 
is  adopted,  although  the  letter  of  it,  for  the  sake  of  convenience, 
is  evaded. ^^ 

In  all  matters  pertaining  to  the  settlement  of  the  estate  the 
executor  or  administrator  stands  as  the  representative  of  those 
to  whom  the  personal  property  of  the  decedent  devolves,  whether 
creditors,  heirs,  or  legatees,  and  in  the  absence  of  fraud  or  collu- 
sion whatever  he  does  in  respect  to  such  property  is  conclusive 

X.   E.   704;    Moore  v.   Staser,  6  Ind.  he  must  pay,  in  addition  to  the  prin- 

App.  364,  32  N.  E.  563,  33  N.  E.  665.  cipal  and  interest,  such  reasonable  at- 

In    this    last    case    the    court    says :  torney's    fees    as   shall   be   sufficiently 

"Where    a    party    executing    a    note  adequate   to  compensate  him  for  the 

containing    an    unconditional    argree-  services    rendered    in    order    to    dis- 

ment  to  pay  attorney's  fees,  whether  charge     the     obligation."       See     also 

the   amount  is  a  stated  per  cent,  or  Starnes   v.   Schofield,  5   Ind.  App.  4, 

undetermined,  has  failed  to  meet  his  31    N.    E.    480;    Harvey   v.    Baldwin, 

obligation   when   due,  and  the  payee,  124  Ind.  59,  24  N.  E.  347,  26  N.  E. 

in  good  faith,  and  because  he  deems  222. 

it  necessary  so  to  do,  in  order  to  '"Foster  v.  Honan,  22  Ind.  App. 
enforce  collection,  places  the  note  in  252,  53  N.  E.  667. 
the  hands  of  an  attorney  at  law  for  "Nelson  v.  Hart,  8  Ind.  293;  Stan- 
collection,  who  renders  professional  ford  v.  Stanford,  42  Ind.  485;  Tick- 
services  in  and  about  the  collection  nor  v.  Harris,  14  N.  H.  272,  40  Am. 
thereof,  either  by  suit  or  otherwise,  Dec.   186. 


444 


INDIANA    PROBATE    LAW.  §    280 


upon  them.''"  He  is  entitled  to  all  the  personal  property  of  the 
decedent  and  neither  the  heirs  nor  legatees  can  prevent  him  from 
asserting  such  right.  The  allowance  of  a  claim  against  him  binds 
them  as  well  as  the  creditors  of  the  estate ;^^  and  if  money  due 
to  the  decedent  has  been  paid  to  the  heirs  who  would  be  entitled 
to  it  on  distribution  the  executor  or  administrator  may  recover  it 
from  them/*  for  until  distribution  he  is  absolutely  entitled  to  the 
possession  of  all  the  personal  property  and  any  interference  there- 
with, by  any  person,  which  has  the  efTect  of  depriving  him  of  the 
possession  is  a  conversion,  and  he  is  entitled  to  recover  such  prop- 
erty whether  it  is  necessary  to  satisfy  debts  or  not.'^ 

The  next  of  kin  have  no  right  to  be  made  parties  to  a  suit 
against  the  estate,  though  alleging  collusion  between  the  adminis- 
trator and  the  creditor.^" 

!^  280.  The  trial  of  claims. — The  power  to  try  claims 
against  the  estates  of  deceased  persons  includes  all  actions  upon 
which  a  money  judgment  can  be  rendered,  whether  growing  out 
of  contract  or  tort,  or  whether  legal  or  equitable  in  their  nature.^^ 
In  the  trial  of  claims  the  statute  provides  that  it  shall  be  con- 
ducted as  in  ordinaiy  civil  cases:  and  if  the  finding  be  for  the 
claimant  in  damages,  the  court  shall  render  judgment  against  the 
executor  or  administrator  for  the  amount  thereof  and  six  per 
cent,  thereon,  and  for  costs,  if  allowed  by  the  provisions  of  this 
act,  to  be  paid  out  of  the  assets  of  the  estate  to  be  administered ; 
if  the  claims  sued  on  be  secured  by  a  lien  upon  property  of  the 
deceased,  the  date  and  extent  shall  be  ascertained  and  fixed  by  the 
finding  and  judgment ;  if  the  finding  be  in  favor  of  the  executor 

"Morris  v.  Murphey,  95  Ga.  307,22  (Pa.)    134;   McCustian  v.   Ramey,  33 

S.  E.  635,  51  Am.  St.  81;  Harter  v.  Ark.  141. 

Songer,   138  Ind.   161,  37  N.  E.  595;  ^  Horton   v.   Jack,    115   Cal.   29,   46 

Glover  v.  Patten,  165  U.   S.  394,  41  Pac.  920. 

L.  ed.  760,  17  Sup.  Ct.  411.  '' Byrd  v.  Byrd,  117  N.  Car.  523,  23 

"Byrd   V.    Byrd,   117   N.   Car.   523,  S.  E.  324. 

23  S.  E.  324;  Harwood  v.  Marye,  8  "Hoffman    v.    Hoflfman,    126    Mo. 

Cal.  580.  486,  29  S.  W.  603 ;  Moore  v.  Rogers, 

"Eisenbise    v.    Eisenbise,   4    Watts  19  111.  347;  Dehart  v.  Dehart,  IS  Ind. 

167;  Brook  v.  Chappell,  34  Wis.  405. 


28o  CLAIMS  AGAINST  ESTATES. 


445 


or  administrator  upon  a  set-off  or  counter-claim,  judgment  shall 
be  rendered  thereon  as  in  ordinar>'  cases ;  if  a  set-off  or  counter- 
claim be  pleaded,  and  the  claim  be  aftenvard  dismissed,  the  execu- 
tor or  administrator  may,  nevertheless,  proceed  to  trial  and  judg- 
ment on  the  set-off  or  counter-claim.^^ 

If  any  claimant  fail  to  attend  and  prosecute  his  claim  at  the 
time  the  same  shall  be  set  down  for  trial,  the  court  shall  dismiss 
the  claim;  and  any  subsequent  prosecution  of  the  claim  shall  be 
at  the  costs  of  the  claimant,  unless  good  cause  for  such  failure  to 
prosecute  be  shown. ^^ 

The  allowance  of  a  claim  by  the  court  is  a  judgment  with  the 
same  conclusive  effect  as  other  judgments  of  courts  of  general 
jurisdiction,  with  this  exception,  that  such  allowance  is  not  con- 
clusive as  to  the  real  estate  of  the  decedent.  This,  for  the  reason 
that  the  heir,  who  is  the  owner  of  the  real  estate,  is  not  a  neces- 
sary party  on  the  trial  of  the  claim.  The  action  being  against  the 
administrator,  the  allowance  is  conclusive  as  to  the  personal 
estate.    As  a  judgment  it  is  impervious  to  collateral  attack.*'' 

The  fact  that  the  proof  upon  the  trial  of  a  claim  does  not  estab- 
lish it  upon  the  precise  theorv^  stated  in  the  claim  will  not  prevent 
a  recovery  thereon.*^ 

'^  Burns'  R.  S.  1908,  §  2843;  able,  convincing  and  uncontradicted, 
jMackey  v.  Ballou.  112  Ind.  198,  13  the  court  has  no  right  to  disregard 
X.  E.  715.  Claims  against  an  estate  it  in  arriving  at  a  conclusion.  Cun- 
may  be  allowed  without  inquiring  ningham  v.  Packard,  6  Ind.  App.  36, 
whether  they  belong  to  a  preferred  32  X.  E.  334.  A  separate  trial,  to  de- 
class,  or  whether  there  are  assets  termine  the  right  to  have  a  claim 
to  pay  them.  Fickle  v.  Snepp,  97  preferred,  cannot  be  demanded;  the 
Ind.  289,  49  Am.  Rep.  449n;  Good-  right  to  a  preference  must  be  tried 
bub  v.  Hornung,  127  Ind.  181,  26  X.  and  determined  in  connection  with 
E.  770.  the   trial    of   the   question    as    to    the 

=•  Burns'      R.      S.      1908,      §     2841.  allowance  of  the  claim.     Goodbub  v. 

Where   a   claim   against   a   decedent's  Hornung,  127  Ind.  181,  26  X.  E.  770. 

estate   is    fairly  established,   it   is  the  **  Munday  v.   Leeper,   120  Mo.  417, 

duty    of    the    court    to    allow    such  25   S.   W.  381 ;   Barber  v.   Bowen,  47 

claim;  but  it  is  the  duty  of  the  court  Minn.    118,    49    X.    W.    684;    Tate    v. 

to    carefully    scrutinize    the   evidence  Xorton,  94  U.  S.  746,  24  L.  ed.  222; 

supporting   such   claim,    for  the  pur-  Stults  v.  Forst,  135  Ind.  297,  34  X.  E. 

pose    of    preventing    fraud.      Where  1125. 

the  testimony  in  support  of  a  claim  "  Taber  v.  Zahner,  —  Ind.  App.  — , 

against  a  decedent's  estate  is  reason-  93  X.  E.  1035. 


446  INDIANA    PROBATE    LAW.  ^    281 

Where  a  claim  lias  been  regularly  disposed  of  upon  the  issue 
docket  of  the  proper  court,  it  will  be  presumed,  where  the  record 
is  silent  on  the  matter,  that  all  the  necessary  steps  were  taken.'' 
Claims  for  funeral  and  burial  expenses,  and  the  expenses  of  ad- 
ministration, are  to  be  tried  before  the  probate  judge  without  a 
jury,  while  on  the  trial  of  ordinary  claims  against  an  estate  a  jury 
may  be  allowed." 

^  281.  Liability  of  executors  and  administrators  on  their 
promises. — If  supported  by  a  sufficient  consideration  and  in 
other  respects  valid,  the  promise  of  an  executor  or  administrator 
to  pay  the  debt  of  his  decedent  may  be  enforced  against  him  per- 
sonally. He  cannot,  by  his  own  act,  create  a  debt  against  the  es- 
tate; having  no  power  to  bind  the  estate,  a  promise  so  made  by 
him  binds  only  himself.  If.  in  the  absence  of  assets  of  the  estate, 
an  executor  or  administrator  give  his  naked  promise  to  pav  a  debt 
of  his  decedent,  such  promise  is  void,  being  without  considera- 
tion.'* 

And  if  an  executor  or  admini.strator  promises  in  writing,  that 
in  consideration  of  having  assets  of  the  estate  he  will  pay  a  par- 
ticular debt  of  the  decedent,  he  may  be  sued  on  such  promise  in 
his  individual  capacity,  and  the  judgment  against  him  will  be 
de  bonis  propriis.*'  Such  a  promise  is  made  upon  a  consideration 
which  accrued  subsequent  to  the  decedent's  death. and  was  to  do 
a  thing  which  his  estate  was  not  bound  to  do :  and  a  promise  so 
made  by  an  executor  or  administrator  will  bind  him  personally, 
but  not  the  estate,  unless  facts  are  stated  showing-  a  rieht  to 
charge  the  estate,  or  that  the  consideration  for  the  promise  arose 
prior  to  the  death  of  the  decedent." 

*' Rodman  v.  Rodman,  54  Ind.  444.  Snead    v.    Coleman,    7    Gratt.    (Va.) 

"Hildebrand    v.    Kinney,    172    Ind.  300,  56  .\m.  Dec.  112. 

447,  87  N.  E.  832.  '^Carter    v.    Thomas,    3    Ind.    213; 

**  Christian  v.   Morris,  50  Ala.  585,  Mills  v.  Kuykendall,  2  Blackf.  (Ind.) 

Claghorn's    Estate,    181    Pa.    St.    600,  47. 

37  Atl.  918,   59  Am.   St.   680;   Davis  ^^  Cornthwaite   v.   First   Nat.    Bank, 

V.   French,   20  Me.  21,  Z7  Am.   Dec.  S7  Ind.  268;  Holderbaugh  v.  Turpin, 

36;  Wilton  v.  Eaton,  127  Mass.  174;  75  Ind.  84,  39  Am.  Rep.  124;  Moody 

V.  Shaw,  85  Ind.  88. 


§  282  CLAIMS  AGAINST  ESTATES.  447 

If  a  third  person  be  induced  to  purchase  the  assignment  of  a 
note  due  from  an  hitestate's  estate,  upon  the  representations  of 
the  executor  or  administrator  of  the  estate,  that  such  note  should 
be  paid,  in  the  absence  of  sufficient  assets  of  the  estate,  such  ex- 
ecutor or  administrator  will  be  held  personally  liable;  and  such 
promise  is  not  within  the  statute  of  frauds."" 

It  is  the  settled  law  of  this  state  that  a  note  given  by  one  ot 
several  administrators  admitting  a  sum  of  money  to  be  due  from 
an  intestate's  estate,  is  not  admissible  in  evidence  in  a  suit  agams 
the  co-administrator  unless  accompanied  by  proof  ot  an  original 
indebtedness  upon  which  such  note  was  founded;  and  that  when 
such  proof  is  made  the  note  becomes  only  prima  facie  evidence 
liable  to  be  disputed  on  any  ground  which  would  have  been  valid 
as  against  such  original  indebtedness.*' 

For  the  enforcement  of  promises  of  this  class  some  benefi 
must  have  accrued,  or  some  right  must  have  been  J''^^'^  "".^'^^ 
would  not  have  accrx,ed  or  been  yielded  m  the  absence  of  te 
promise,    otlterwise   there   is   no   consideration   to    support    the 

^'in'the'absence  of  negligence  or  nnsconduct    the  e-ecutor  or 
administrator  is  not  personally  liable  for  the  d^bts  o     -s  d  ce 
dent    If  he  has  used  the  assets  properly,  and  they  fail  to  satisfy 
al,  the  claims  in  the  order  of^their  priority,  the  creditors  cannot 
have  any  recourse  upon  him.°° 

In  any  matter  for  which  the  estate  would  be  hable,  although 
the  executor  or  administrator  promise,  it  must  not  be  understood 
that  his  personal  liability  on  such  promise  operates  to  exo--^« 
or  discharge  the  estate,  for  as  between  the  ofhcer  and  the  estate 
he  miy  recover  from  the  estate  whatever  he  has  to  pay  by  reason 
of  his  promise.^^ 

§  282     Form  and  effect  of  judgment  rendered  on  claim.— 
Where  the  action  is  against  an  administrator  or  executor  upon  a 

«Hackleman    v.    Miller,    4    Blackf.  /^Bank    v.     ^l^'^^^J^^''^,,^''' 

/T   A  ^   199  Schouler  Exrs.  &  Admrs..  S  t^- 

(Ind.)  322.                          ,  T  ^    971  "  Peter  v    Beverlv,  10  Pet.   (U.  S.) 

-Weston  V.  Murnan,  4  Ind  271.  Peter  ^-  ^^       -^           B^f,,d,  9 

^•Vogel    V.    O'Toole,    2    Ind.    -\pp.  532,  9  L.  ed.  5-^,  ri 

196,  28  X.  E.  209.  ^I°-  869- 


44^  INDIANA    PROBATE    LAW.  §    282 

demand  due  from  the  estate  of  his  decedent,  the  judgment  should 
be  made  payable  out  of  the  assets  of  the  estate  and  not  against 
him  personally."^ 

A  judgment  against  an  administrator  or  executor  as  such,  to 
he  paid  out  of  the  assets  of  the  estate  of  the  deceased,  is  not  sub- 
stantially, but  merely  nominally,  a  judgment  against  him.  It  is  a 
judgment  against  the  estate  which  he  administers,  and  is  never  to 
be  paid  unless  the  estate  is  able  to  pay  it.  The  executor  or  ad- 
ministrator is  not.  by  such  judgment,  rendered  absolutely  liable 
for  its  payment,  nor  is  such  a  judgment  within  the  statute  author- 
izing replevin  bail.''^ 

Tf  the  instalment  upon  which  the  claim  is  based  jirovides  that 
the  debt  shall  be  paid  in  installments,  and  some  installments  are 
not  due  when  judgment  is  rendered,  the  court  need  not  render  a 
judgment  for  the  gross  amount  but  may  make  it  payable  in  in- 
stallments as  the  same  become  due.''* 

No  judgment  can  be  rendered  directed  against  any  ])articular 
assets  of  the  estate  except  wlien  the  claimant  has  some  sjiecific 

"  Fla.Lij?    V.     Winans,    2    Ind.     123;  is  a  mere  allowance  of  the  claim  to 

Campbell    v.    Lindley,    17    Ind.    280;  lie  paid  in  due  course  of  administra- 

Steinmetz   v.    State,   ex    rcl.,   47   Ind.  tion.      Maddo.x    v.    Maddox,   97    Ind. 

465.    .An  allowance  of  a  claim  against  537. 

a   decedent's   estate  is   not  a   lien   on        "  Egbert  v.  State,  4  Ind.  399.     The 

the    estate,    nor    can    its    payment    be  record   of   the   allowance   of   a   claim 

enforced    by    execution;    and    where  against   the   estate   of   a   decedent   is 

the  decedent  had,  in  his  lifetime,  as-  prima   facie  evidence  of  the  validity 

signed   a   policy  of   insurance  on   his  and    amount    of   the    claim.      Cole    v. 

life  to  his  creditor,  as  collateral   se-  Lafontaine,  84   Ind.   446;   Jackson   v. 

curity    for  the   payment   of   his   debt.  Weaver,  98  Ind.  307;   Smith  v.  Gor- 

the  creditor  does  not  waive  his  right  ham,    119    Ind.    436,    21    N.    E.    1096. 

to    the    proceeds    of    such    policy    by  Where       judgment       was       rendered 

procuring   an    allowance   of    his    debt  against    the    estate    when    it    should 

as    a    claim    against    the    decedent's  have  been   against  the   administrator, 

estate    in    the    proper    court,    nor    by  but    no    objection   was   taken    to   the 

his    assignment   without    recourse   of  form,   and  no   motion   made   to   cor- 

such  policy  to  the  decedent's  adminis-  rcct  it,  the  error  was  not  noticed  on 

trator  solely  for  the  purpose  of  col-  appeal.     Maddox  v.  Maddox,  97  Ind. 

lection.    Hight  v.  Taylor,  97  Ind.  392.  537. 

Promissory    notes,    whether    due    or        '"  Wolfe  v.  Wilsey,  2  Ind.  App.  549, 

not,   may   be   filed   as   claims   against  28  N.  E.  1004. 
an  estate.     The  judgment  upon  them 


§  282  CLAIMS  AGAINST  ESTATES.  449 

lien  upon  certain  property.    Such  lien  is  not  necessarily  divested 
by  a  judgment  on  the  claim." 

Though  not  a  judgment  in  the  strict  sense  of  the  term,  the  al- 
lowance or  rejection  of  a  claim  by  the  court  operates  as  an  ad- 
judication between  the  claimant  and  the  administrator  or  execu- 
tor and  is  binding  upon  the  estate  as  well  as  upon  the  claimant.'^ 

A  valid  claim  must  be  shown  to  be  due  from  a  decedent  to  au- 
thorize a  judgment  against  his  estate.  And  if,  upon  the  trial  of 
a  claim  against  an  estate,  it  appears  that  such  claim  is  the  per- 
sonal debt  of  the  administrator,  no  judgment  can  be  rendered  ni 
the  matter,  as  such  administrator  is  not  personally  a  party  to 

such  suit." 

Where  an  account  tiled  against  a  decedent's  estate  has  been 
prosecuted  to  a  final  judgment  on  its  merits,  and  such  judgment 
remains  in  force,  the  account  cannot  be  used  as  a  set-off  in  a  suit 
by  the  administrator  against  the  claimant  on  a  note  executed  by 
such  claimant  to  the  decedent  in  his  lifetime.'** 

An  administrator  or  executor  has  no  authority  to  confess  judg- 
ment on  a  claim  against  the  estate  he  represents.  The  statute 
which  provides  that  the  defendant  may,  at  any  time  before  trial, 
offer  in  writing  to  allow  judgment  to  go  against,  etc.,  is  not  ap- 
plicable to  the  liquidation  of  claims  against  a  decedent's  estate. 
After  such  claim  has  been  placed  upon  the  issue  docket  for  trial, 

"Johnson  V.  Meier,  62  Ind.  98.  adjudication,  and  is  sufficient  to  bar 

-La    Porte  v.   Organ,  5   Ind.  App.  another  action,  it  having  none  of  the 

369   12  \    E    342;  Bentley  v.  Brown,  characteristics   of    a  nonsuit    or   dis- 

123' Ind.  552.  24  N.  E.  507;  Stults  v.  missal    without    Prejudice.      Stult^    v. 

Forst.  135  Ind.  297.  34  N.  E.  1125.  Forst.   135   Ind.  297.  34  N.   E.   1125^ 

"  Horrall  v.   Scudder,  27  Ind.  499.  If    an    instrument   provides   that   the 

Where  a  claim  is  filed  against  a  de-  debt  shall  be  paid  in  installments   and 

cedent's  estate,   an   issue   formed,  the  some  of  the  installments  are  not  yet 

case  submitted  to  the  court  for  trial,  due,  the  judgment  upon  proof  of  the 

and   the   court   takes  the   case  under  claim,    need    not   be    rendered    for    a 

advisement,   and,   after   several   days,  gross  sum,  but  the  adnn>nistra  or  may 

being   fully  advised   in  the  premises,  be   permitted  to  pay  the   debt  m  m- 

dismlsses  it,  or  disallows  it,  charging  stallments      as      they     become      due^ 

the  costs  to  claimant,  such  judgment  Wolfe  v.  W.lsey,  2  Ind.  App.  549,  28 

having  never  been  set  aside  nor  ap-  N.  E    1004. 

pealed    from,   the   case   has   been    de-  "Nave  v.  Wilson,  Zl  Ind.  294. 
cided  upon  its  merits,  and  is  a  final 

29— Pro.  L.\w. 


450  INDIANA    PROBATE    LAW.  §    282 

the  executor  or  administrator  cannot  allow  judgnient  to  go  on 
such  claim  without  the  consent  of  the  court.'" 

§  283.  No  execution  on  judgment  of  allowance. — No  exe- 
cution or  final  process  shall  be  issued  on  any  allowance  or  judg- 
ment rendered  upon  a  claim  against  a  decedent's  estate  for  the 
collection  thereof  out  of  the  assets  of  the  estate;  but  all  such 
claims  shall  be  paid  by  the  executor  or  administrator,  in  full  or 
pro  rata,  in  due  course  of  administration."" 

The  admission  or  allowance  of  a  claim  against  the  estate  of  a 
decedent  by  the  executor  or  administrator  does  not  have  the  force 
and  effect  of  a  judgment  in  any  particular;"^  while  the  allowance 
of  such  claim  by  the  court  after  it  has  been  placed  upon  the  issue 
docket  for  trial  has,  in  many  respects,  the  force  of  a  regular 
judgment  in  a  civil  action ;  but  such  allowance  gives  the  creditor 
no  additional  rights  against  the  decedent's  estate.  The  allowance 
does  not  become  a  lien  upon  the  projjerty  of  the  estate,  and  its 
payment  cannot  be  enforced  by  execution."'-  Such  judgment  can 
only  be  a  mere  allowance  of  the  claim  to  be  paid  in  due  course  of 
administration."^ 

The  property  of  a  decedent's  estate  in  the  hands  of  his  executor 
or  administrator  to  be  administered  is  not  subject  to  levy  and 
sale  under  an  ordinary  execution  issued  on  a  judgment  against 
such  executor  or  administrator.  There  is  but  one  case  under  our 
law  at  present  in  which  the  property  of  a  deceased  debtor  so  held 
can  be  sold  upon  execution,  and  that  is  where  the  judgment  upon 
which  the  execution  issues  directs  the  sale  of  certain  specified 
property  in  the  hands  of  the  executor  or  administrator  to  satisfy 
the  judgment."*  In  all  other  cases  the  spirit  and  intention  of  the 
law  of  this  state  for  the  settlement  of  decedents'  estates  are  in 
direct  conflict  with  the  idea  that  any  portion  of  the  property  of 
such  estates  in  the  hands  of  the  executors  or  administrators  there- 
of can  be  subjected  to  levy  and  sale  on  execution  issued  on  a  judg- 

'"Hanna  v.   Dunham,   10  Ind.  App.  "  Maddox  v.  Maddox.  97  Ind.  537. 

611,  38  N.  E.  343.  "Burns'    R.    S.    1908,    §    724,    2d 

''  Burns'  R.  S.  1908,  §  2845.  clause ;  Joiner  v.   Sanders,  5   Blackf . 

"Fiscus  V.  Robbins,  60  Ind.  100.  (Ind.)  378. 
*=  Hight  V.  Taylor,  97  Ind.  392. 


§  284  CLAIMS  AGAINST  ESTATES.  45  ^ 

ment  against  such  executor  or  administrator.  The  pui-pose  of  the 
law  would  be  defeated  if  such  property  were  subject  to  levy  and 
sale  on  such  execution.  Therefore,  without  express  legislative  au- 
thority, the  courts  have  no  power  to  order  and  direct  that  a  judg- 
ment against  an  estate  on  a  debt  due  from  the  decedent,  except 
for  the  sale  of  specific  property,  shall  be  levied  on  the  property  of 
the  decedent  in  the  hands  of  his  executor  or  administrator.®'' 

§  284.  Proceedings  after  judgment.— New  trials  may  be 
granted  in  claim  cases  as  in  actions  under  the  code  of  civil  pro- 
cedure. Such  new  trials  may  be  granted  for  causes  discovered 
after  the  close  of  the  term  at  which  the  trial  was  had  on  the 

claim.'* 

The  devisees  or  heirs  of  a  decedent  may  maintain  an  action 
to  set  aside  the  judgment  or  allowance  on  a  claim  against  his  es- 
tate, at  any  time  before  the  final  settlement  of  such  estate,  for 
fraud  or  mistake  in  the  rendition  of  such  judgment ;  but  to  be 
allowed  to  do  this  they  must  have  appeared  and  made  defense  to 
the  claim,  or  in  some  way  have  been  parties  to  such  judgment." 
But  such  persons  cannot  afterwards,  in  contesting  the  adminis- 
trator's application  to  sell  real  estate,  question  the  validity  of  such 

allowance.*^* 

A  complaint  to  review  the  proceedings  and  judgment  upon  a 
claim  against  a  decedent's  estate,  is  not  authorized  by  the  statute 
regulating  the  settlement  of  such  estates,  and  as  the  provisions  of 
the  civil  code  for  the  review  of  judgments  in  civil  actions  are  not 
applicable  to  proceedings  and  judgments  on  claims,  such  judg- 
ments cannot  be  so  reviewed.'® 

Either  party  to  the  action  on  the  trial  of  a  claim  who  feels  him- 
self aggrieved  by  the  judgment  of  the  court  has  the  right  to  ap- 
peal therefrom.''*^ 

« Johnson  V.  Meier,  62  Ind.  98.  "Smith   v.    Gorham,    119  Ind.   436, 

•«  McConahev    v.    Foster,    21    Ind.  21  N.  E.  1096.                  ,  ,  ^   ^^ 

App   416   52  N.  E.  619.  "^  McCtirdy  v.  Love.  97  Ind.  62. 

-Bell  V   Avres,  24  Ind.  92;  Cassel  ^"Burns'  R.   S.   1908,   §  2977;  post, 

V     Case    14   Ind.    393;    Lancaster   v.  Chap.    20;    Ray   v.    Moore,    154    Ind. 

Gould,  46  Ind.  397.  368,  56  N.  E.  841. 


CHAPTER  XII. 

PAYMENT    OF    CLAIMS    AND    EXPENSES. 

§285.  The  payment  of  claims  and  Ha-  §292.  The  widow's  allowance. 

bilities.  293.  Payment   of   judgments,   mort- 

286.  Order  of  priority.  gages  and  and  other  liens. 

287.  The    expenses    of    administra-  294.  Payment  by  order. 

tion.  2'^5.   Penalty  for  delaying  payment. 

288.  Debts      due      to      the      United        296.  Interest  on  claims. 

States.  297.  Payment  of  money  into  court. 

289.  Payment  of  funeral  expenses.  297a.  Payment  to  heirs,  etc.,  before 

290.  Expenses  of  last  sickness.  final  settlement. 

291.  The  payment  of  taxes. 

§  285.  The  payment  of  claims  and  liabilities. — The  i)rinci- 
pal  purpose  of  an  administration  is  the  payment  of  the  debts  of 
a  decedent  and  the  distribution  of  the  surplus  of  his  estate.  In 
fact,  the  chief  purpose  is  the  payment  of  the  debts,  for  as  has  been 
shown,  if  there  are  no  debts  an  estate  may  be  settled  by  the  heirs 
without  an  administration.^ 

After  a  claim  has  been  properly  allowed  by  the  executor  or 
administrator,  or  by  order  of  court,  it  becomes  the  duty  of  the 
executor  or  administrator,  in  the  due  course  of  administration, 
to  apply  the  assets  of  the  estate  in  his  hands  to  the  payment  of 
each  claim  in  its  order. 

The  order  in  which  all  claims  against  a  decedent's  estate  shall 
be  paid  is  fixed  by  statute.  It  prescribes,  in  plain  terms,  what 
claims  have  priority  of  payment  over  the  general  debts  of  the 
estate ;  and  judgment  of  a  court  that  a  particular  claim  shall  be 
a  preferred  claim  will  not  give  to  such  a  claim  a  preference,  con- 
trary to  the  provisions  of  the  statute.  The  rights  of  priority  and 
the  order  of  payment  are  fixed  and  determined  by  the  letter  of 

^Ante,  §  24. 


§    285  PAYMENT    OF    CLAIMS    AND    EXPENSES,  453 

the  statute  and  not  by  the  judgment  of  the  court."  And  where 
the  law  fixes  the  order  for  the  payment  of  claims,  it  should  be 
pursued;  othenvise  the  loss,  if  any,  to  a  preferred  claimant  must 
fall  upon  the  executor  or  administrator  who  pays  a  claim  out  of 
its  order.  An  executor  or  administrator  should  not  receive  credit 
in  his  final  settlement  for  any  payment  he  makes  on  the  general 
debts  of  the  estate  until  all  the  preferred  claims  are  paid.^ 

Where  a  settlement  had  been  made  with  the  creditor  by  the 
administrator  of  a  deceased  debtor,  and  the  claim  allowed  in  full 
under  a  mutual  mistake  that  the  estate  was  solvent,  when  in  fact 
it  was  not,  and  the  claim  thus  allowed  is  not  a  preferred  one,  such 
mistake  could  be  relieved  against.* 

As  a  rule  an  overpayment  to  a  creditor,  made  by  the  adminis- 
trator or  executor,  may  be  recovered,  it  being  inferred  that  he 
only  intended  to  make  such  payment  as  the  estate  could  afford, 
and  not  to  subject  himself  to  personal  liability  on  account  of  a 
deficiency  of  assets.  This  is,  however,  contrary  to  the  common- 
law  rule.^  But  it  is  probably  essential  to  recovery,  that  such  pay- 
ment has  been  made  under  the  impression  that  the  estate  was 
solvent." 

So  where  an  executor  or  administrator,  acting  under  the  hon- 
est belief  that  the  estate  is  solvent,  pays  a  creditor  in  excess  of  his 
pro  rata  share,  he  may  recover  back  the  excess  paid  in  an  action 
for  money  had  and  received  for  the  use  of  the  estate.  In  such 
case  it  must  appear  that  the  money  was  paid  by  the  executor  or 
administrator  under  a  mistake  of  fact  and  not  under  a  mistake  of 
law.^ 

"Jenkins    v.    Jenkins,   63   Ind.    120;  the}^  can  be  paid.    Newcomer  v.  Wal- 

Goodbub   V.    Hornung,    127   Ind.    181,  lace,  30  Ind.  216. 

26  N.  E.  770.     It  is  the  duty  of  the  *  East  v.  Ferguson,  59  Ind.  169. 

administrator    to    pay    claims    when-  'Walker    v.    Hill,    17    Mass.    380; 

ever  he  has  money  available  for  that  Hatcher  v.   Royster,   14  Lea   (Tenn.) 

purpose.      Pence    v.    Makepeace,    75  222;  Beatty  v.  Dufief,  11  La.  Ann.  74. 

Ind.  480.  *  Rogers    v.    Weaver,   5    Ohio   536; 

'  Cunningham    v.    Cunningham,    94  Walker  v.  Hill,  17  Mass.  380. 

Ind.   557.     Liens   on   real   estate  may  '  Tarplee  v.  Capp,  25  Ind.  App.  56, 

be  paid,  and  should  be  paid,  as  soon  56    N.    E.    270;    Smith    v.    Smith,    76 

as  assets  are  obtained   out  of  which  Ind.  236;  Stokes  v.  Goodykoontz,  126 


454  INDIANA  PROBATE  LAW.  §  285 

The  rule  is  that  claims  should  be  filed  against  an  estate  as  the 
statute  requires,  and  if  an  executor  or  administrator  pays  a  claim 
which  has  not  been  filed  and  allowed  he  does  so  at  his  peril.** 

An  heir,  devisee  or  legatee  has  a  right  to  pay  debts  against  the 
ancestor  or  testator  for  the  purpose  of  protecting  his  interest  in 
the  property  of  the  decedent,  and  equity  will  keep  the  debt  alive 
for  his  benefit,  and  subrogate  him  to  all  the  rights  of  the  creditor 
whose  debt  he  has  paid."  So  where  a  widow  advances  money  to 
the  administrator  of  her  husband's  estate  to  be  used  by  him  in 
paying  just  and  valid  claims  against  such  estate,  she  is  subro- 
gated to  tiie  rights  of  the  creditors  whose  claims  were  paid  with 
her  money.  The  court  says:  "In  allowing  her  to  recover  the 
money  so  paid  no  one  is  injured.  She  is  simply  subrogated  to  the 
rights  of  the  creditors  whose  just  and  valid  claims  were  paid  bv 
her.  She  is  only  paid  what  otherwise  would  have  been  paid  to 
such  creditors.  She  gets  neither  more  nor  less  than  they  were 
entitled  to  receive. "^"^ 

Such  payments  are  not  regarded  as  voluntary  payments,  and 
even  where  a  stranger  pays  a  debt  of  the  decedent  at  the  request 
of  the  executor  or  administrator  of  such  decedent's  estate,  he 
will  be  subrogated  to  all  the  rights  of  the  creditor  whose  debt  he 
paid." 

In  one  case  it  was  held  that  the  purchaser  of  real  estate  from 
an  heir,  who  pays  a  debt  of  the  decedent  in  order  to  protect  his 
title,  is  entitled,  as  against  the  estate  of  such  decedent,  to  l)e  sub- 
rogated to  all  the  rights  of  the  creditor  whose  debt  he  paid.^- 
And  in  another  case  it  was  held  that  one  who  had  purchased  real 
estate  at  an  administrator's  sale  which  sale  after\vard  pro\ed  to 
be  void,  who  by  direction  of  the  administrator  paid  the  purchase 

Ind.    535.    26    N.    E.    391:    Wolf    v.  "Neptune    v.    Tyler,    15    Ind.    App. 

Beaird,  123  111.  585,   15  X.  E.   161,  5  132.  41  X.  E.  965. 

Am.  St.  565.  "  Owen    Creek    Presby.    Church    v. 

'Ditton  V.  Hart,  —  Ind.  — ,  95  N.  Taggart,  44  Ind.  App.  393,  89  N.  E. 

E.   119.  406. 

•Owen    Creek    Presby.    Church    v.  '-"Chaplin   v.   Sullivan,   128  Ind.   50, 

Taggart,  44  Ind.  App.  393,  89  X.  E.  27  X.  E.  425. 
406. 


§    286  PAYMENT    OF    CLAIMS    AND    EXPENSES.  455 

price  on  the  debts  of  the  estate,  was  entitled  to  be  subrogated  to 
the  rights  of  the  creditors/' 

§  286.    Order  of  priority.— The   statute  provides  the  fol- 
lowing order  in  which  claims  shall  be  paid.    Unless  otherwise 
provided  in  this  act,  the  debts  and  liabilities  of  a  decedent  shall, 
if  his  estate  be  solvent,  be  paid  in  the  following  order  of  classes : 
First.  The  expenses  of  administration. 
Second.  The  expenses  of  the  funeral  of  the  deceased. 
Third.  The  expenses  of  his  last  sickness. 
Fourth.    Taxes  accrued  upon  the  real  and  personal  estate  of 
the  deceased  at  his  death,  and  taxes  assessed  upon  the  personal 
estate  during  the  course  of  the  administration. 

Fifth  Debts  secured  by  liens  upon  the  personal  and  real  estate 
of  the  decedent  created  or  suffered  by  him  in  his  lifetime,  and 
continuing  in  force:  Provided,  That  the  real  estate  of  the  de- 
cedent shall  have  been  sold  subject  to  any  lien,  and  the  holder 
thereof  shall  have  accepted  the  bond  of  the  purchaser,  as  provided 
in  this  act.  the  debt  secured  by  such  lien  shall  be  omitted  m  the 
distribution. 

Sixth      \  sum  not  exceeding  fifty  dollars,  for  wages  due  any 
employe  for  work  and  labor  perfomied  for  the  decedent  withm 
two  months  prior  to  his  death. 
Seventh.    General  debts. 
Eighth.   Legacies.'*  _ 

The  executor  or  administrator  has  no  discretion,  but  must  toi- 
low  the  order  prescribed  by  this  statute,  even  though  otherwise 
directed  bv  the  court.  A  failure  to  observe  this  order  of  payment 
will  make  the  executor  or  administrator  liable  to  any  creditor 
who  suffers  loss  by  reason  thereof.'' 

"Duncan   v.    Gainey.    108   Ind.  579,  "If  a  creditor  who  has  ^  Hen  o" 

^^,    E   470  P'-^P^^ty   does  not  enforce   the  same, 

"Burns'  R    S    1908,   §  2901.     The  but  files  his  claim  agamst  the  estate 

statute   provides  "the   order   in  which  his  claim  will  then  be  only  a  general 

claims    shall   be   paid,   and   the    court  debt.      Rogers    v.    State,    6    Ind.    31. 

cimTot  tange    such    order.     Jenkins  When  there  are  liens  upon  the  mter- 

enkins    63  Ind.   120;   Goodbub  v.  est  of  the  widow  m  the  lands  of  the 

Horntg    127  Ind.  181,  26  N.  E.  770.  decedent  created  to  secure  h,s  debts. 


456  INDIANA    PROBATE    LAW.  §    287 

The  question  of  priority,  and  as  to  whether  a  claim  should  be 
paid  as  preferred,  can  be  raised  and  tried  at  the  time  of  the  con- 
sideration of  the  final  report  of  the  executor  or  administrator, 
either  by  petition  or  by  exceptions  to  the  report. ^*' 

Where  an  estate  is  clearly  solvent,  and  there  are  ample  assets 
to  pay  all  the  debts,  the  administrator  or  executor  is  not  guiltv  of 
a  breach  of  trust  simply  because  he  does  not  pay  the  debts  in  the 
exact  order  designated  by  the  statute.  Any  deviation,  however, 
from  this  order,  on  his  part,  is  at  his  peril,  for  if  injun-  should 
result  to  the  estate  l)y  reason  of  it  he  would  l)e  i:>ersonally  liable.'^ 
The  classification  in  this  statute  is  an  arbitrary  one,  but  it  is  in- 
tended to  apply  to  all  estates  alike,  lx)th  solvent  and  insolvent, 
and  unless  specific  liens  absorb  all  the  property  the  statute  must 
be  followed.^®  Mr.  Woemer  says :  "The  executor  or  adminis- 
trator is  bound,  at  his  peril,  to  observe  the  order  of  priority  in 
the  payment  of  the  debts  of  his  testator  or  intestate,  for  if  he  pay 
those  of  lower  rank  first,  having  notice  of  the  existence  of  debts 
of  a  higher  degree,  he  must,  on  a  deficiency  of  assets,  answer  to 
those  of  the  higher  degree  out  of  his  own  estate."^® 

§  287.  The  expenses  of  administration. — By  the  English 
rule,-"  as  well  as  the  rule  in  some  of  the  states.-^  the  funeral  ex- 
penses take  precedence  over  all  other  debts  and  liabilities,  but  in 
this  state  the  expenses  of  administration  are  the  first  of  the  debts 
of  an  estate  which  an  executor  or  administrator  is  authorized  to 

the  funds  in  the  hands  of  the  admin-  tiie  proceeds  of  such  sale  as  soon  as 

istrator    should    be    applied    on    such  the    same    are    collected.      Jewett    v. 

liens   before  the  payment  of  general  Hurrle,  121  Ind.  404,  23  N.  E.  262. 

debts.     Perry  v.  Barton,  25  Ind.  274 ;  "  Masterson     v.     Cauble,     15     Ind. 

Hunsucker    v.    Smith,    49    Ind.    114;  App.  515.  41  N.  E.  477,  44  N.  E.  377. 

Morgan     v.     Sackett,    57    Ind.     580;  "^  Hildebrand    v.    Kinney,    172    Ind. 

Sparrow     v.     Kelso,     92     Ind.     514;  447,  87  X.  E.  832;  Snyder  v.  Thieme 

Bowen  v.  Lingle,  119  Ind.  560,  20  N.  &c.  Brew.  Co.,  173  Ind.  659,  90  N.  E. 

E.  534.  314. 

"  Goodbub    V.    Hornung,    127    Ind.  "  Woerner  Am.  Law  Admin.,  §  364. 

181,    26    X.    E.    770.      If    a    personal  =nViIliams  Exrs.,  988;   3   Co.   Inst, 

estate  is   ordered  sold   free   of   liens,  202. 

persons    holding    such    liens    are    en-  "'  Woerner  Am.  Law  Admin.,  §  365. 
titled  to   receive   their  claims   out  of 


§    287  PAYMENT    OF    CLAIMS    AND    EXPENSES.  457 

pav.  Their  payment  takes  precedence  over  all  other  classes  of  in- 
debtedness. And  in  the  payment  of  such  expenses,  it  is  of  im- 
portance to  an  executor  or  administrator  to  know  just  what  costs 
and  expenses  belong  in  this  first  class  of  claims,  so  as  to  take 
precedence  of  all  other  debts.  The  Supreme  Court  in  construing 
this  provision  of  the  statute  says:  "Where  costs  are  incurred  by 
an  administrator  in  the  proper  defense  of  claims  filed  against  the 
estate,  or  in  prosecuting  claims  in  favor  of  the  estate  against 
others,  such  costs  pertain  to  expenses  of  administration,  and  their 
payment  has  preference  over  other  claims.  But  costs  incurred  by 
persons  in  prosecuting  claims  against  the  estate  should  not  be  re- 
garded as  expenses  of  administration.  Where  such  costs  are  in- 
curred as  a  sequence  of  the  recovery  of  allowances  of  claims 
against  the  estate,  they  stand  on  the  same  footing  as  such  claims ; 
in  fact,  are  part  thereof,  and  are  to  be  paid  in  full  unless  the  as- 
sets of  the  estate  are  sufficient  to  pay  in  full  all  claims  of  the 
class  to  which  they  belong.""^ 

Expenses  under  this  head  will  include  those  paid  for  probating 
a  will  as  well  as  the  costs  of  an  appeal  from  such  probate ;  also  the 
costs  of  a  good  faith  effort  made  by  the  executor  to  uphold  the 
will  in  a  contest  proceeding,  as  well  as  a  reimbursement  to  hmi 
for  his  expenses  in  preserving  the  estate  during  the  litigation." 

Expenses  of  administration  is  a  broader  term  than  "probate 
charges,"  and  under  that  phrase  all  sucli  expenditures  may  be 

=  Costs  incurred  by  an  executor  or  425,  20  X.  E.  294.    If  a  claim  against 

administrator    in   prosecuting   claims,  a  decedent's  estate  be  not  duly  ven- 

or  in  defending  suits  against  the  es-  fied  until  after  it  has  been  filed,  the 

tate,  are  to  be  paid  as  expenses  of  ad-  claimant  shall  be  bound  for  all  costs 

ministration.     Costs    made  by   claim-  in     the     prosecution     of     the     claim. 

ants      where     claims     are     allowed  Hanna  v.  Fisher,  95  Ind.  383. 
against   the   estate,   are  not   expenses         ===>  Andrews  v.  Andrews,  7  Ohio  St. 

of  administration,  but  are  paid  in  the  143;    Hazard    v.    Engs,    14    R.    I.    5; 

order  in  which  such  claims  are  paid.  Meeker  v.   Meeker,  74  Iowa  352,  37 

Taylor  v.  Wright,  93  Ind.  121.    When  X.  W.  773,  7  Am.   St.  489;  Lassiter 

property  is  sold  to  discharge  a  lien  v.   Travis,   98   Tenn.   330,   39   S.   W. 

thereon,  no  portion  of  the  proceeds  226;  Mathis  v.  Pitman,  32  Xeb.  191 

can  be  applied  on  the  expenses  of  ad-  49  X.  W.   182;   Gilbert  v.  Bartlett,  9 

ministration,   funeral   expenses   or  of  Bush    (Ky.)   49;  Phillips  v.   Phillips, 

last    sickness,   until   the   lien   is    fully  81   Ky.  328. 
satisfied.     Rvker  v.  Vawter,  117  Ind. 


45^  INDIANA    PROBATE    LAW.  §    287 

allowed  which  have  been  legitimately  made  on  behalf  of  the  es- 
tate." 

Expenses  of  administration  are  a  debt  of  the  estate,  and  not 
of  the  decedent,  and  the  rule  is  well  settled  that  the  debts  of  the 
estate  must  be  paid  before  the  debts  of  the  decedent." 

All  the  property  of  a  debtor  which  can  be  subjected  to  the  pay- 
ment of  his  debts  is  a  fortiori  subject  to  the  payment  of  the  ex- 
penses of  administration.  His  real  estate  may  be  sold  for  such 
purpose,  and  the  fact  that  it  has  been  fraudulently  conveyed  does 
not  exempt  it."*^ 

Attorney's  fees,  for  ser\-ices  rendered  an  exe(;utor  or  adminis- 
trator, may  become  expenses  of  administration,  veiy  much  de- 
pending upon  the  character  of  the  services  and  the  contract  under 
which  they  were  rendered.-' 

The  right  of  an  executor  or  administrator  to  an  allowance  for 
attorney  fees,  expended  by  him  either  in  establishing  or  resisting 
a  will,  depends  in  a  great  measure  upon  whether  the  litigation 
was  beneficial  to  the  estate  or  not.  or  whether  it  was  in  the 
interest  of  those  who  would  ultimately  be  entitled  to  the  assets." 

In  all  bona  fide  litigation  where  the  interests  of  the  estate  are 
involved  the  executor  or  administrator  is  entitled  to  credit  for 
court  costs  occasioned  by  such  litigation  and  regardless,  too,  of 
the  result  of  it.  But  if  litigation  is  caused  by  his  own  negligence 
or  bad  faith,  or  where  he  has  without  good  cause  resisted  a  just 
demand  against  the  estate,  he,  and  not  the  estate,  will  be  held 
liable  for  the  costs.-" 

"Gurnee  v.  Maloney,  38  Cal.  85,  99  51  Ind.  159;  Long  v.  Rodman,  58  Ind. 

Am.  Dec.  352;  Nathan  v.  Lehman,  39  58;    Scott    v.    Dailey,    89    Ind.    477; 

Ark.  256.  Roll   v.   Mason,  9  Ind.   App.   651,  Zl 

==  United     States     v.     Eggleston,    4  X.   E.  298;   Richey  v.   Cleet.  46  Ind. 

Saw.  (U.  S.)  199;  Linton,  Succession  App.  326. 

of.  31  La.  Ann.  130.  ^  Sheetz's  Appeal,  100  Pa.  St.  197; 

""Dunning  v.   Driver,  25   Ind.  269;  Henry    v.    Superior    Court,    93    Cal. 

Falley  v.   Gribling,   128   Ind.    110,  26  569,  29  Pac.  230;  Lassiter  v.  Travis, 

N.   E.   794;   Bassett  v.   :\rcKenna,  52  98  Tenn.  330,  39  S.  W.  226. 

Conn.   437.  ="  Bendall   v.   Bendall,   24  Ala.   295, 

"Lauve.  Succession  of.  18  La.  Ann.  60  Am.   Dec.  469;   Glen  v.   Fisher,  6 

721;    Thompson's    Estate,    In    re,    41  Johns.  Ch.   CN.  Y.)   ZZ,  10  Am.  Dec. 

Barb.   (X.  Y.)  237;  Xave  v.  Salmon,  310. 


§    288  PAYMENT    OF    CLAIMS    AND    EXPENSES.  459 

But  an  executor  or  administrator  cannot  charge  the  estate  for 
sen'ices  rendered  it  by  himself  as  attomey.^^ 

Costs  made  in  suits  brought  or  defended  by  an  executor  or 
administrator,  in  good  faith,  in  matters  pertaining  to  the  estate 
are  proper  charges  against  the  estate.^ ^ 

"Where  in  prosecuting  a  claim  against  an  estate,  one  recovers 
such  claim  with  his  costs,  the  payment  of  his  costs  has  no  pref- 
erence, but  follows  the  same  order  of  the  claim  in  the  prosecution 
of  which  they  are  recovered ;  and  such  costs  will,  according  to 
the  assets  of  the  estate,  be  entitled  to  a  full  or  pro  rata  payment 
with  the  claims  of  the  same  class."^" 

An  estate  is  chargeable  with  the  reasonable  expenses  of  an 
executor  in  resisting  the  contest  of  a  will.^^ 

A  wrong  action  knowingly  brought  by  an  administrator  should 
be  dismissed  at  his  costs.  And  he  should  be  charged,  also,  with 
the  expense  of  an  appeal  wrongfully  prosecuted  by  himself.^* 

Allowances  to  executors  and  administrators  for  ser^-ices  are 
largely  within  the  discretion  of  the  court,  and  in  making  them 
the  court  should  take  into  consideration  the  nature  and  amount  of 
the  estate,  the  difficulties  attending  its  settlement,  the  peculiar 
qualifications  of  the  officer,  together  with  other  facts  and  circum- 
stances necessar}'  to  come  to  a  just  conclusion.^" 

§  288.  Debts  due  to  the  United  States. — One  class  of 
claims  not  provided  for  in  the  above  statute,  which,  in  their  pay- 
ment, take  precedence  of  all  other  debts  of  the  decedent,  is  claims 
due  the  United  States.  This  preference  exists  by  authority  of  a 
law  of  congress  and  is  therefore  valid  and  binding  in  all  the  states 

^  Miles  V.  DeWoIf,  8  Ind.  App.  153,  Ind.   399;    Miles   v.    DeWolf,  8   Ind. 

34  X.  E.   114:   Taylor  v.  Wright,  93  App.  153,  34  X.  E.  114. 

Ind.    121;    Pollard    v.    Barkley,    117  ^*  McClelland    v.     Bristow,    9    Ind. 

Ind.  40.  17  X.  E.  294.  App.   543,   35    X.   E.    197;    Raugh   v. 

"Mackey  v.   Ballou,   112   Ind.   198,  Weis.  138  Ind.  42,  Zl  X.  E.  331. 

13  X.  E.  715:  Andrews  v.  Andrews,  ^Pollard  v.    Barkley,    117   Ind.   40, 

7  Ohio  St.  143.  17   X.    E.   294;   Watkins   v.   Romine, 

^Tavlor  v.  Wright,  93  Ind.   121.  106  Ind.  378.  7  X.  E.  193;  Ex  parte 

"  Roil   V.   Mason,  9  Ind.   App.  651,  Hodge.  6  Ind.  App.  487,  ZZ  N.  E.  980 ; 

Zl  X.  E.  298:   Bratney  v.   Curn,-.  ZZ  Ross  v.  Conwell.  7  Ind.  App.  375,  34 

X.  E.  752. 


460  INDIANA  PROBATE  LAW.  §  288 

whether  their  statutes,  like  ours,  are  silent  on  tlie  subject,  or  not. 
This  act  of  congress  places  all  debts  due  the  general  government 
before  all  other  debts  whatever,  and  therefore  supersedes  all  state 
laws  upon  that  subject.^"  This  priority,  however,  does  not  oper- 
ate as  a  lien  upon  the  debtor's  property,  nor  in  derogation  of  any 
lien  created  by  the  debtor  before  his  death." 

The  estate  of  any  deceased  person  who  may  have  in  his  life- 
time, in  any  manner,  become  indebted  to  the  United  States,  will 
be  held  liable  for  the  payment  of  such  debt:  and  if  the  estate  of 
such  deceased  debtor  in  the  liands  of  his  executor  or  administra- 
tor shall  be  insufficient  to  pay  all  his  debts  in  full,  the  debt  due  the 
United  States  must  first  be  fully  satisfied ;  it  will  take  precedence 
of  all  other  classes  of  indebtedness ;  nor  can  the  local  laws  of  a 
state  bind  the  United  States  or  their  rights  in  such  case.^" 

It  is  provided  that  ''whenever  the  estate  of  any  deceased  debtor, 
in  the  hands  of  the  executors  or  administrators,  is  insufficient 
to  pay  all  the  debts  due  from  the  deceased,  the  debts  due  to  the 
United  States  shall  be  first  satisfied."  And  "even-  executor,  ad- 
ministrator or  assignee,  or  other  person  who  pays  any  debt  due 
by  the  person  or  estate  from  whom  or  for  which  he  acts,  before 
he  satisfies  and  pays  the  debts  due  to  the  United  States  from  such 
person  or  estate,  shall  become  answerable  in  his  own  person  and 
his  estate  for  the  debt§  so  due  to  the  United  States,  or  for  so  much 
thereof  as  may  remain  due  and  unpaid."^" 

As  the  priority  of  the  United  States  only  extends  to  the  net 
proceeds  of  the  property  of  the  deceased,  it  does  not  take  pre- 
cedence of  taxes,  funeral  charges,  and  the  necessary  expenses 
of  administration.  These  are  not  "debts  due  from  the  deceased," 
but  charges  imposed  on  the  estate  by  the  law  of  the  land,  and 
must  be  discharged  before  paying  any  claim  due  the  United 
States.     Expenses  of  the  last   illness  of  the  decedent  do  not, 

'"United   States   v.   Duncan.  4  Mc-  S.)    182,  9  L.  ed.  94;  Brent  v.  Bank, 

Lean  (U.  S.)  607.  10  Pet.  (U.  S.)  596,  9  L.  ed.  547. 

=•' Brent  v.   Bank,   10   Pet.    (U.    S.)  ^U.    S.    Stat.    1878,   §§    3466,   3467, 

596,  9  L.  ed.  547.  5101. 

''*  Field  V.  United  States,  9  Pet.  (U. 


§    289  PAYMENT    OF    CLAIMS    AND    EXPENSES.  46 1 

however,  take  precedence  of  a  claim  due  the  United  States.   Such 
claim  does  not  yield  in  priority  to  the  claim  of  any  creditor.*'' 

In  order,  however,  to  bind  an  executor  or  administrator,  he 
must  have  notice  of  the  existence  of  the  debt  due  the  United 
States ;  othei-wise  no  devastavit  will  be  created  by  his  paying 
creditors  of  the  estate  in  the  ordinai-y  course  of  administration.*^ 

§  289.  Payment  of  funeral  expenses. — It  is  a  duty  to  bury 
a  deceased  person  in  a  manner  suitable  to  the  estate  he  leaves 
behind  him,  and  it  makes  little  difference  by  whom  this  duty  is 
performed ;  the  law  implies  a  promise  to  reimburse  him  for  the 
reasonable  expenses  incurred  and  paid."*- 

This  duty  of  bur}-ing  the  dead  is  of  such  high  and  sacred  im- 
portance from  a  sentimental  point  of  view,  as  well  as  from  the 
point  of  public  policy,  that  the  reasonable  expense  incurred  in  its 
perfonnance  is,  almost  without  exception,  given  priority  of  pay- 
ment over  other  debts  and  liabilities.  In  this  state  the  payment 
of  such  expenses  is  placed  second  in  the  order  of  priority. 

The  rule  is,  that  funeral  epenses  to  be  entitled  to  priority, 
must  be  reasonable,  and  comprise  the  expenses  properly  incurred 
for  the  burial  and  the  compensation  to  the  undertaker.  The 
authorities  differ  as  to  what  constitutes  a  reasonable  expenditure 
for  the  funeral.'*^ 

In  some  states  the  funeral  expenses  are  limited  by  statute.** 

**  United  States  v.  Eggleston,  4  "  Shaeffer  v.  Shaeffer,  54  Md.  679, 
Saw.  (U.  S.)  199;  United  States  v.  39  Am.  Rep.  406;  Crapo  v.  Arm- 
Duncan,  12  111.  523.  strong,   61    Iowa  697,    17   N.   W.   41; 

"United      States      v.      Fisher,      2  Hewett  v.  Bronson,  5  Daly  (N.  Y.) 

Cranch    (U.    S.)    358,  2   L.   ed.   304;  1;    Valentine    v.    Valentine,    4   Redf. 

Aikin  v.   Dunlap,  16  Johns.   (N.  Y.)  (N.    Y.)    265;    Freeman   v.    Coit,  27 

11;    Harrison    v.    Sterry,    5    Cranch  Hun      (N.      Y.)      447;      Samuel      v. 

(U.  S.)  289,  3  L.  ed.  104.  Thomas,  51  Wis.  549,  8  N.  W.  361; 

"Hapgood   V.    Houghton,    10   Pick.  Spire  v.  Lovell,  17  III.  App.  559;  Mc- 

(Mass.)    154;    Dampier    v.    St.    Paul  Clellan  v.  Filson,  44  Ohio  St.   184,  5 

Trust   Co.,  46  Minn.  526,  49  N.   W.  N.  E.  861,  58  Am.  Rep.  814. 

286;  Fogg  v.  Holbrook,  88  Me.   169,  "In    re   Butler's    Estate,   3   McAr- 

IZ    Atl.    792,    Zl    L.    R.    A.    660n;  thur   (U.   S.)    535;   Sue.  Hearing,  28 

France's  Estate,  75  Pa.  St.  220;  Hil-  La.  Ann.  149. 
debrand  v.   Kinney,   172  Ind.  447,  87 
N.  E.  832. 


4^2  INDIANA    PROBATE    LAW.  §    289 

And  in  some  cases  such  expense  will  include  a  reasonable  sum  for 

a  burial  lot.*" 

As  against  legatees,  heirs  and  next  of  kin,  such  expense  may 

be  incurred  as  will  bury  the  deceased  according  to  the  station  he 

occupied   in   life;   but   as   against   creditors   nothing   sliould   be 

allowed  beyond  what  is  absolutely  necessary." 

The  principle  to  be  deduced  from  the  cases  is,  that  the  funeral 

expenses  must  be  in  accordance  with  the  condition  and  station 

in  life  of  the  decedent ;  and  must  bear  a  reasonable  relation  to  the 

size  and  value  of  his  estate. 

Funeral  and  burial  expenses  are  not  in  the  nature  of  claims 
against  an  estate.  As  the  court  says  in  one  case:  "They  are  not 
debts  of  the  decedent,  hence  not  accounts  against  him  or  his 
estate,  within  the  meaning  of  the  statute  of  limitations.  They 
can  arise  from  no  request  or  obligation  of  the  decedent,  express 
or  implied,  unless  it  might  be  under  the  provisions  of  a  will. 
They  are  liabilities  or  charges  against  his  estate,  raised  up  and 
imposed  by  law,  as  distinguished  from  obligations  arising  by 
some  act  or  promise  of  the  decedent.  They  stand  in  the  same 
category  as  expenses  of  administration."*' 

Where  the  entire  proceeds  of  a  decedent's  property  are  re- 
quired to  pay  and  discharge  a  specific  lien  placed  thereon  by  him 
in  his  lifetime,  and  the  estate  is  insolvent,  such  lien  will  absorb 
the  entire  fund  to  the  exclusion  even  of  the  expenses  of  admin- 
istration, funeral  expenses  and  the  expenses  of  last  illness.*' 

All  reasonable  expenses  incurred  for  the  funeral  will  be  al- 
lowed, but  no  allowance  will  be  made  to  an  executor  or  admin- 
istrator for  his  time  and  trouble  in  attending  the  funeral  of  the 

"Chalker  v.  Chalker,  5  Redf.    (N.  *' Hildebrand    v.    Kinney,    172    Ind. 

Y.)   480;  Metz's  Appeal,  11   S.  &  R.  447,  87  N.  E.  832;  Snyder  v.  Thieme 

(Pa.)   204;  Jennison  v.  Hapgood,   10  &c.  Brew.  Co.,  173  Ind.  659.  90  N.  E. 

Pick.   (Mass.)   n.  314. 

"Flintham's    Appeal,    11    S.    &    R.  **  Ryker   v.    Vawter,    117    Ind.    425, 

CPa.)    16;   M'Glinsey's  Appeal,  14  S.  20  N.  E.  294;  Hildebrand  v.  Kinney, 

&   R.    (Pa.)    64;    Toller   Exrs.   245;  172  Ind.  447,  87  N.  E.  832. 
2   Williams    Exrs.    872;    Hancock    v. 
Podmore,  1  B.  &  A.  260. 


§    289  PAYMENT    OF    CLAIMS    AXD    EXPENSES.  463 

decedent,  nor  for  payments  made  to  friends  and  relatives  for  such 
services.*^ 

The  estate  is  not  hable  for  the  expense  of  unnecessarily  remov- 
ing the  body  of  a  decedent  from  a  suitable  place  of  interment  and 
burying  it  elsewhere. ^*^ 

But  the  reasonable  expenses  for  taking  up,  removing,  and 
re-interring  the  body  will  be  allowed  when  it  is  made  to  appear 
that  the  place  of  the  original  burial  was  improper  or  unfit  for  that 
purpose. 

Where  the  decedent  dies  away  from  home  the  expense  of 
communicating  the  news  of  his  death  to  his  family,  the  expense 
of  transporting  the  body  to  his  home,  and  the  added  cost  of  a 
person  to  accompany  the  body,  are  legitimate  funeral  charges  and 
should  be  allowed. '^^ 

The  cost  of  a  coroner's  inquest,  and  the  expense  of  a  post- 
mortem examination  are  neither  properly  part  of  the  funeral 
expenses. ^- 

As  to  the  amount  to  be  allowed  for  funeral  expenses  much 
will  depend  upon  the  condition  of  the  estate,  while  the  rule  is  that 
such  an  amount  may  be  expended  as  is  necessary  to  bur)-  the 
decedent  in  the  style  usually  adopted  for  persons  of  like  rank  and 
condition  in  society,  yet  this  rule  is  much  qualified  in  the  interest 
of  creditors  where  the  estate  is  insolvent.  Little  if  any  difficulty 
will  arise  where  the  estate  is  clearly  solvent,  but  where  it  is  not 
tlie  executor  or  administrator  should  refuse  to  allow  extravagant 
claims  for  funeral  and  burial  expenses. ^^ 

**  Lund  V.  Lund,  41  N.  H.  355.  able  in  insolvent  estates,  even  greater 

""Watkins  v.  Romine,  106  Ind.  378,  latitude  is  necessary  where  there  are 

7  X.   E.   193.     See  Allen  v.  Allen,  3  sufficient    assets    to    pay    the    debts. 

Dem.  (N.  Y.)  524.  The  circumstances  determining  what 

"Hasler   v.    Hasler,    1    Bradf.    (N.  is    reasonable   in   such   cases   are  nu- 

Y.)    248;    Sullivan   v.   Horner,  41    N.  merous,  and  the  degree  of  importance 

J.  Eq.  299,  7  Atl.  411.  attached  to  each  is  incapable  of  ex- 

"Houts  V.   McCluney,   102  Mo.   13,  act    measurement,    impressing    them- 

14  S.  W.  766;  Smith  v.  McLaughlin,  selves  more  or  less  strongly  on  dif- 

11  111.  596.  ferent    minds.      Public    opinion    and 

"  "Impossible  as  it  is  to  lay  down  a  general  expectation,  fashion,  the  feel- 
precise  rule  to  be  followed  in  re-  ings  of  friends  and  neighbors,  the 
spect  of  the  funeral  expenses  allow-  age,  standing,  property,  and  habits  of 


464 


INDIANA    PROBATE    LAW. 


§    289 


While  by  statute  in  this  state,  an  executor  or  administrator  is 
bound  to  pay  the  expenses  of  the  funeral  and  last  illness  of  his 
decedent,  whether  such  funeral  was  ordered  by  the  executor  or 
administrator,  or  by  some  third  person,  yet  such  statute  is  silent 
as  to  the  expense  of  a  monument  or  tombstone  erected  at  the 
erave  of  such  decedent.  It  has  been  decided  that  the  estate  of 
a  decedent  cannot  be  held  liable  for  money  expended  for  a  monu- 
ment placed  at  the  grave  of  such  decedent,  on  a  contract  made 
with  a  party  other  than  the  executor  or  administrator  of  the  de- 
cedent.=^* 

But  in  a  proper  case  an  executor  or  administrator  will  be 
allowed  to  expend,  or  authorize  the  expenditure  of  a  reasonable 
and  moderate  sum  for  a  tombstone  for  the  grave  of  tlie  dece- 
dent.'' 

This  would  perhaps  l)e  the  rule  in  ever>-  case,  as  between  the 
personal  representatives  and  the  heirs,  devisees,  or  distributees 

life  of   the  decedent,  as  well  as  the     erected   in   memory  of  the  decedent, 


standing  and  rank  in  society  of  the 
surviviiig  family,  must  all  be  consid- 
ered. But  large  expenditures  for 
burials,  disproportioned  to  the  assets 
of  an  estate  should  not  be  encour- 
aged. If  greater  economy  were  in- 
sisted on,  in  small  as  well  as  in  great 
estates,  many  a  widow  and  heir 
struggling  under  the  privations  of 
bitter  poverty  would  have  reason  to 


the  court  in  which  such  appeal  is 
pending  will  not  interfere  by  injunc- 
tion. Lewis  v.  Fillion,  4  Ind.  App. 
105,  29  N.  E.  443.  In  Vogel  v. 
OToole,  2  Ind.  .^pp.  196,  28  N.  E. 
209,  the  plaintiffs  sold  and  delivered 
a  monument  to  A  in  his  lifetime. 
.\fter  .A's  death,  his  administrator 
wrote  a  letter  to  the  plaintiff  con- 
taining   this    statement :     "I    will    file 


be  thankful  for  being  prevented  from  the  bill  for  you  and  get  as  much  as 

wasting    a    substantial    part    of    their  the  estate  will  pay,  and  I  will  settle 

means  upon   the    fruitless   pomp   and  the    rest."      Signed   as    an    individual, 

ceremony  of  an  extravagantly  costly  not    as    administrator.      There    being 


funeral."    Woerner  Am.  Law  Admin., 
§  360. 

"Lerch  v.  Emmett,  44  Ind.  33L 
See  also,  Sweeney  v.  Muldoon,  139 
Mass.  304,  31  N.  E.  720,  52  Am.  Rep. 
708.  When  an  appeal  is  taken  by  an 
administrator  from  an  allowance 
against  his  decedent's  estate  for  a 
monument     which     is     about     to     be 


no  consideration,  the  administrator 
was  held  not  liable  for  the  balance 
of  such  claim. 

'''Burnett  v.  Noble,  5  Redf.  (N. 
Y.)  69;  Campbell  v.  Purdy.  5  Redf. 
(N.  Y.)  434;  Owens  v.  Bloomer,  14 
Hun  (N.  Y.)  296;  Jaqua  v.  Gray,  46 
Ind.  App.  24,  91  N.  E.  745. 


289 


PAYMENT    OF    CLAIMS    AND    EXPENSES. 


46: 


of  the  decedent,  and  also  as  against  creditors  of  the  estate  in  cases 
where  the  estate  was  clearly  solvent. 

Where  the  estate  is  clearly  solvent  the  executor  or  administra- 
tor is  authorized  to  allow  the  reasonable  and  necessary  cost  of 
a  tombstone  or  monument  placed  at  the  grave  of  his  decedent,  as 
a  part  of  his  funeral  expenses,^**  and  the  heirs  or  third  persons 
have  the  right  to  erect  a  suitable  monument  to  the  decedent  and 
have  the  cost  thereof  charged  against  his  estate.^' 

The  funeral  expenses  of  a  minor  child  are  not  an  absolute 
charge  against  the  estate  of  such  minor.  Under  the  law  a  father 
is,  in  general,  liable  for  the  decent  funeral  expenses  of  his  de- 
ceased minor  child.  When,  however,  the  parent  has  no  property 
of  his  own  with  which  to  support  a  minor  child,  resort  may  be 
had  to  the  property  of  the  child  for  such  purpose,  but  such  con- 


'^  Pease  v.  Christman,  158  Ind.  642, 
64  N.  E.  90;  Jaqua  v.  Gray,  46  Ind. 
App.  24,  91  N.  E.  745. 

"  Hildebrand  v.  Kinney,  172  Ind. 
447,  87  X.  E.  832.  In  Pease  v. 
Christman,  158  Ind.  642,  646,  64  N. 
E.  90.  the  court  says :  "In  the  appeal 
in  Webb's  Estate,  165  Pa.  St.  330, 
30  Atl.  827,  44  Am.  St.  666,  the 
court  said :  'In  any  event  the  act  of 
burial  includes  all  the  usual  incidents 
of  decent  burial,  of  which  one,  at 
least,  is  the  erection  of  a  suitable 
tombstone.'  It  certainly  cannot  be 
asserted  that  the  mere  fact  that  a 
tombstone  or  monument  to  mark  the 
last  resting  place  of  the  deceased  was 
erected  at  the  grave  after  the  burial 
will  result  in  making  it  any  less  an 
item  incident  to  such  burial.  Of 
course,  where  the  estate  of  the  de- 
ceased is  insolvent,  a  stricter  rule 
prevails  in  the  allowance  of  funeral 
expenses  than  is  enforced  where  the 
estate  is  solvent.  The  rights  of  cred- 
itors of  insolvent  estates  are  of  more 
regard  than  those  of  the  next  of  kin 
of  the  deceased,  and  the  rule  in  such 


cases  is  to  allow  no  more  to  defray 
funeral  expenses  than  is  necessary 
and  reasonable  under  all  of  the  cir- 
cumstances. In  the  determination  of 
that  question,  however,  the  rank  or 
condition  in  life  of  the  deceased  is 
a  factor  to  be  taken  into  considera- 
tion by  the  court.  The  rule  that,  in 
the  eye  of  the  law,  one  must  be  just 
before  he  is  generous  applies  with 
equal  force  to  his  estate  after  his 
demise,  or,  in  other  words,  as  as- 
serted by  some  of  the  authorities, 
'Dead  debtors  must  not  feast  to  make 
their  living  creditors  fast.'  In  the 
absence  of  any  statutory  restriction 
to  the  contrary,  the  amount  to  be  al- 
lowed against  the  estate  of  a  dece- 
dent for  the  cost  of  a  tombstone  or 
monument  or  other  funeral  expenses 
is,  as  a  general  rule,  a  matter  to  be 
left  under  all  of  the  circumstances 
in  each  particular  case,  to  the  sound 
discretion  of  the  probate  court,  the 
abuse  of  which  discretion  will  be 
subject  to  review  on  appeal  to  a 
higher  court." 


30— Pro.  Law. 


466  INDIANA  PROBATE  LAW.  §  29O 

dition  of  the  parent  must  first  be  made  to  appear,  as  the  habihty 
of  the  child's  estate  for  such  charges  is  contingent  on  the  inabihty 
of  the  parent  to  pay.^* 

But  an  infant  husband's  contract  for  the  burial  expenses  of 
his  deceased  wife  or  children  is  binding  upon  him  and  conse- 
quently binding  upon  his  estate.  Such  contract  is  given  validity 
because  it  is  for  the  burial  of  those  who  are  so  closely  joined  with 
him  by  reason  of  the  marriage  relation  that  it  is  to  be  regarded  as 
a  contract  for  his  own  personal  benefit."^" 

§  290.  Expenses  of  last  sickness. — The  expenses  of  the  last 
sickness  are  obligations  accruing  in  the  lifetime  of  the  decedent, 
and  unlike  funeral  exi>enses,  they  will  be  barred  by  the  six-year 
statute  of  limitations,  and  the  statute  will  begin  to  run  from  the 
death  of  the  decedent.'"' 

The  statute  makes  funeral  expenses  and  the  expenses  of  the 
last  sickness  preferred  debts  to  the  lien  of  judgments,  mortgages, 
etc.,  in  so  far  at  least  as  the  personal  assets  are  concerned. 

As  to  the  expenses  of  the  last  illness  of  the  deceased  no  rule 
of  limitation  can  be  laid  down.  Much  will  depend  ujwn  the 
character  and  duration  of  such  sickness,  and  the  degree  of  atten- 
tion necessar}'.     It  will  include  physician's  charges,  for  nursing 

'*  Rowe  V.  Raper,  23  Ind.  App.  27,  to  be  commenced  within  six  years. 
54  X.  E.  770.  11  Am.  St.  411 ;  Maitlen  Whether  the  e.xpense  was  incurred 
V.  Maitlen.  44  Ind.  App.  559,  89  N.  E.  at  the  request  of  the  decedent,  or 
966;  Schouler  Dom.  Rel.,  §  242a;  solely  upon  request  of  appellant,  or 
Field  Parent  &  Child.  §  54;  Bair  v.  under  his  promise  to  pay  it.  if  there 
Robinson,  108  Pa.  St.  247 ;  Sullivan  v.  was  any  liabilit\'  upon  the  part  of  de- 
Homer,  41  N.  J.  Eq.  299,  7  Atl.  411;  cedent  to  pay.  either  express  or  im- 
Kinney  v.  Heuring.  44  Ind.  App.  590,  plied,  the  obligation  and  debt  arose 
87  N.  E.  1053.  88  N.  E.  865.  before  his  death,  and  the  w^eight  of 

"'  Schouler  Dom.  Rel.,  §  199 ;  Chap-  authority   is,    that   the    statute   begins 

pie  V.  Cooper,  13  M.  &  W.  252.  to  run  before  the  death  of  a  decedent, 

"^".■\s  to  the  claim  of  appellant  for  in  the  absence  of  satutorj-  provision, 
money  paid  for  the  service  of  a  it  is  not  suspended  by  death,  or  by 
physician  and  for  an  invalid  chair,  the  failure  of  appointment  of  an  ad- 
it was  clearly  an  account  within  our  ministrator."  Hildebrand  v.  Kinney, 
statute  requiring  actions  on  accounts  172  Ind.  447,  450,  87  X.  E.  832. 


§    291  PAYMENT    OF    CLAIMS    AND    EXPENSES.  467 

and  attendance,  medicine,  etc.,  all  of  which  will  vary  with  the 
nature  of  the  disease,  and  the  situation  of  the  patient." 

All  such  claims  for  last  illness  are  of  equal  degree,  and  if  the 
estate  is  not  sufficient  to  pay  them  all  it  should  be  divided  pro 
rata  among  them.''" 

The  expenses  of  a  wife's  last  sickness  and  funeral  are  primar- 
ily a  charge  upon  the  husband  and  not  against  the  estate  of  the 
wife.®^ 

Expenses  of  the  last  illness  are  in  some  of  the  states  classed 
with  funeral  expenses,  but  if  there  be  no  statutory  provision  to 
that  effect  they  cannot  be  so  classed,  because  they  accrue  before 
death  and  therefore  constitute  a  debt  of  the  decedent,  while  the 
funeral  taking  place  after,  cannot  constitute  a  debt  of  the  de- 
ceased, but  only  a  charge  against  his  executor  or  administrator.®* 

§  291.  The  payment  of  taxes. — Taxes  constitute  the  next 
class  in  the  order  of  preference,  and  it  is  the  duty  of  the  executor 
or  administrator  to  pay  all  taxes  for  which  the  estate  in  his  hands 
is  justly  liable ;  and  it  is  not  necessary  that  such  taxes  should  be 
presented  and  filed  as  are  other  claims.  All  taxes  upon  the  per- 
sonal estate  due  at  the  death  of  the  owner,  and  which  accrue 
during  the  course  of  administration,  as  well  as  all  taxes  which 
have  accrued  against  the  real  estate  of  the  decedent  at  the  date  of 
his  death,  are  proper  charges  against  his  estate  and  must  be  paid 
by  his  executor  or  administrator.®' 

All  taxes  due  at  the  time  of  the  death  of  a  decedent,  whether 
levied  against  his  personal  property,  or  his  real  estate,  are  a 
charge  against  his  estate  to  be  met  and  paid,  in  proper  order,  by 
his  executor  or  administrator.    Taxes  accruing  upon  his  real  es- 

"Percival    v.    McVoy,    Dudley    (S.  281,    15   X.    E.   631,  4  Am.    St.   311; 

Car.)   2,2,7.  Freeman    v.    Coit,   27   Hun    (N.    Y.) 

"Bennett  v.  Ives,  30  Conn.  329.  447. 

"Staples'  App.,  52  Conn.  425;  Gal-  "  Woerner  Am.  Law  Admin.,  §  361. 

loway   V.   McPherson,   67   Mich.    546,  ""Coleman  v.  Coleman,  5  Redf.  (N. 

35  N.  W.   114,   11   Am.   St.  596;  but  Y.)    524;    Ring    v.    Ewing,    47    Ind. 

see  McClellan  v.  Filson,  44  Ohio  St.  246;  Henderson  v.  Whitinger,  56  Ind. 

184,  5  N.  E.  861,  58  Am.  Rep.  814;  131.     See  Chap.  21. 
Constantinides   v.   Walsh,    146   Mass. 


468  INDIANA  PROBATE  LAW.  §  292 

late  after  his  death  must  he  paid  by  the  heirs,  or  those  who  be- 
come the  owners  of  it.  But  as  the  ownership,  jxjssession,  and 
control  of  the  personal  estate  is  in  the  personal  representative  of 
the  decedent,  and  such  proi)erty  must  be  returned  by  such  repre- 
sentative for  taxation  so  lon<(  as  the  estate  remains  in  his  hands 
for  settlement;  therefore,  all  taxes  accruing  against  personal 
property  of  an  estate  prior  to  final  settlement  are  charges  to  be 
met  and  paid  out  of  the  funds  of  the  estate.'"' 

Ami  if  an  administrator,  having  assets  of  the  estate  in  his 
hands,  fails  to  pay  the  taxes  properly  assessed  against  him  as 
such  administrator,  he  will  be  held  personally  liable  for  such 
taxes."^ 

For  the  puri)<)ses  of  taxation  and  the  payment  nf  taxes,  the 
title  and  possession  of  the  executor  relate  back  to  the  lime  of 
the  death  of  the  decedent.*"* 

While,  in  the  order  prescribed  by  the  statute  for  the  payment 
of  the  debts  and  liabilities  of  a  decedent's  estate,  taxes  are  fourth, 
yet  they  are  not  such  claims  as  the  law  requires  shall  be  filed  for 
payment  as  other  debts ;  they  are  groui^ed  witli  funeral  expenses 
and  exj^enses  of  administration  as  charges  to  l)e  paid  by  the  ex- 
ecutor or  administrator  in  due  course  of  administration  without 
any  formal  presentation."" 

§  292.  The  widow's  allowance. — There  is  one  preferred 
claim  not  provided  for  by  the  statute  fixing  the  order  of  priority 
for  the  payment  of  the  debts  and  liabilities  of  the  estate  of  a  de- 
ceased husband,  which  takes  precedence  of  all  debts  and  charges 
against  his  estate  except  expenses  of  administration,  funeral  ex- 
penses, and  expenses  of  last  sickness,  and  that  is  the  claim  of  his 
widow  to  the  statutor}-  allowance  provided  for  her  by  §  2786 
Bums'  R.  S.  1908. 

*=«  Wilson  V.  White,  133  Ind.  614.  33  Y)   223  \   State  v.  Jones.  39  X.  J.   L. 

N.  E.  361.   19  L.  R.  A.  581;   People  650. 

V.    Barker,    150   N.   Y.   52,   44  N.   E.  "^^  Sommers    v.    Boyd,    48   Ohio    St. 

785 ;   Fairfield  v.   Woodman,  76  Me.  648.  29  N.  E.  497. 

549.  "^Graham  v.  Russell,   152  Ind.   186. 

•"Williams  v.  Holden,  4  Wend.  (N.  52  X.  E.  806;  Hildebrand  v.  Kinney, 

172  Ind.  447.  87  X.  E.  832. 


293 


PAYMENT   OF    CLAIMS   AND   EXPENSES.  469 


She  may  take  this  allowance  in  personal  property  at  the  time 
of  the  appraisement,  but  if  she  does  not  claim  it  then,  or  claims 
only  part  of  it,  she  is  entitled  to  payment  of  it  in  money,  and  if 
the  estate  is  clearly  solvent  she  must  be  paid  out  of  the  first  money 
received  by  the  executor  or  administrator.  This  allowance  is 
given  to  her  whether  the  husband  dies  testate  or  intestate.  She 
can  only  be  barred  from  asserting  her  claim  to  this  allowance  by 
some  act  of  her  own,  such  as  an  election  under  a  will,  or  an  ante- 
nuptial or  post-nuptial  agreement,  or  some  positive  waiver  on  her 
part."' 

This  statutory  allowance  is  not  an  interest  in  the  estate  of  the 
decedent,  nor  is  the  widow's  right  to  its  payment  a  claim  to  be 
filed  against  his  estate.  It  is  in  the  nature  of  a  preferred  charge 
imposed  by  law  upon  the  estate,  of  which  the  executor  or  admin- 
istrator is  bound  to  take  notice  and  to  see  paid.''  And  if  the 
widow  should  die  before  the  five  hundred  dollars  allowed  her  by 
the  statute  has  been  paid  to  her,  its  payment  may  be  enforced 
by  her  executor  or  administrator  against  the  estate  of  her  hus- 
band." 

The  statute  makes  it  the  duty  of  the  executor  or  administrator 
to  pay  the  widow  this  claim  out  of  the  first  money  received  by 
him,  if  the  estate  is  solvent,  and  if  he  refuses  wrongfully  to  pay 
it  when  he  should  do  so.  an  action  will  lie  against  him  for  its  re- 
covery and  the  judgment  obtained  should  include  interest  from 
the  date  of  such  refusal." 

Such  claim  is  to  be  paid  as  other  claims  against  the  estate  are 
paid,  out  of  the  proceeds  of  the  personal  estate  of  the  decedent  if 
suflicient.  and  if  not.  by  the  sale  of  real  estate.'* 

^  293.  Payment  of  judgments,  mortgages  and  other  liens. 
— Next  in  priority  of  payment  are  such  debts  as  are  secured  by 
liens  upon  the  personal  or  real  estate,  which  attached  during  the 

"Ante,  §§  164.  165,  166,  167.  33  Ind.  399;  Pierce  v.  Pierce,  21  Ind. 

"Claypool  V.  Jaqua,   135   Ind.   499,  App.  184,  51  X.  E.  954. 

35  X.  E.  285 ;  Rush  v.  Kelley,  34  Ind.  "  Brown    v.    Bernhamer,    159    Ind. 

App.  449,  73  X.  E.  130.  538.  65  X.  E.  580. 

'-  Welch    V.    Collier,    27    Ind.    App.  '*  Claypool   v.  Jaqua,   135   Ind.  499, 

502.  61  X.  E.  757;  Bratney  v.  Curry,  35  X.  E.  285. 


470  INDIANA    PROBATE   LAW.  §    293 

lifetime  of  the  decedent,  and  which  remain  in  force  after  his 
death.  Judgments,  mortgages  and  other  liens,  against  either  the 
personal  or  real  estate  of  a  decedent  must  be  paid  by  his  executor 
or  administrator,  before  paying  the  general  debts  of  the  estate. 
The  filing  of  the  claims  secured  by  such  liens,  against  the  estate, 
entitles  the  lien-holder  to  his  preference  in  the  class  to  which  his 
claim  properly  belongs,  and  to  his  full  or  pro  rata  share  in  the 
distribution  of  the  personal  assets  of  the  estate,  but  such  filing 
of  the  claim  does  not  release  the  lien  of  the  judgment,  mortgage, 
etc." 

Formerly  the  statute  did  not  give  the  mortgage  creditor  a  gen- 
eral lien  against  the  assets  of  the  estate,  nor  did  it  give  his  claim 
any  preference  over  the  general  debts  of  the  estate,  further  than 
the  property  to  which  his  lien  extended.  The  mortgage  created 
no  lien  except  upon  the  property  embraced  in  it,  and  the  lien 
as  to  such  property  continued  after  the  mortgagor's  death ;  and 
it  has  been  held  that  in  cases  where  the  mortgagor  was  not  in 
possession  of  the  proj^erty  mortgaged  at  the  time  of  his  death,  the 
mortgagee  had  his  choice,  to  follow  the  projierty,  or  resort  to 
the  estate  for  the  payment  of  his  debt ;  but  in  case  he  sought  pay- 
ment from  the  estate,  his  claim  would  be  classed  with  the  general 
debts." 

A  vendor's  lien  is  often  referred  to  as  an  equitable  mortgage. 
and  it  is  in  some  respects  analogous  to  a  mortgage,  but  under  a 

™  Clarke  v.  Henshaw,  30  Ind.   144;  personal   estate  are  preferred  claims 

Newcomer  v.   Wallace,   30  Ind.  216;  as  to  such  estate,  and  insolvency  of 

Hunsucker  v.  Smith,  49  Ind.  114.    As  the  estate  does  not  affect  the  same, 

soon  as  there  are  funds  available  for  Evans  v.  Pence,  78  Ind.  439.     A  lien 

the  purpose  the  liens  on  the  property  upon  a  judgment  should  be  paid  out 

of  the  decedent  should  be  paid,  and  of  the  proceeds  of  the  judgment,  and 

before  payment  of  the  general  debts,  the    court    by   an    order   may   compel 

State,  ex  rel.,  v.  Brown,  80  Ind.  425.  such  payment.   Blankenbaker  v.  Bank, 

After     mortgaged     property     is     ex-  85  Ind.  459. 

hausted  the  balance  of  the  mortgaged  '"  Rogers  v.  State,  6  Ind.  31 ;  New- 
debt  is  only  an  ordinary  claim.  Cole  kirk  v.  Burson,  21  Ind.  129;  Kirk- 
v.  McMickle,  30  Ind.  94 ;  Rodman  v.  patrick  v.  Caldwell,  32  Ind.  299 ;  Kim- 
Rodman,  64  Ind.  65 ;  La  Plante  v.  mell  v.  Burns,  84  Ind.  370 ;  Rodman 
Convery,  98  Ind.  499;  Kimmell  v.  v.  Rodman,  64  Ind.  65. 
Burns,   84   Ind.    370.      Mortgages   on 


§    293  PAYMENT    OF    CLAIMS    AND    EXPENSES.  47 1 

former  statute  it  was  held  not  to  be  a  mortgage  or  entitled  to 
any  legal  preference  as  a  lien,  the  statute  at  that  time  limiting 
such  claims  to  "judgments  which  are  liens  upon  the  decedent's 
real  estate,  and  rnortgages  upon  real  and  personal  property  exist- 
ing in  his  lifetime."' '  It  seems  that  from  the  broader  terms  of 
the  statute  as  it  now  is,  such  a  lien  would  fall  within  the 
class  preferred  in  clause  five,  and  the  amount  due  be  collected  as 
if  secured  by  a  purchase  money  mortgage."^ 

The  holder  of  a  lien  against  a  decedent's  real  estate  must  file 
his  claim  against  the  estate  if  he  wishes  to  share  in  the  personal 
estate,  and  if  he  does  not  file  such  claim  his  remedy  will  be  con- 
fined to  the  particular  land  to  which  his  lien  attaches.'*' 

The  allowance  of  a  claim  against  a  decedent's  estate,  based 
upon  notes  secured  by  mortgage  upon  real  estate  of  the  decedent, 
does  not  bar  a  right  to  foreclose  such  mortgage  after  the  lapse  of 
a  year  from  the  death  of  the  decedent.^** 

One  who  has  obtained  a  judgment  and  had  an  execution  issued 
thereon  in  the  lifetime  of  the  judgment  debtor,  is  not  prevented 
by  the  provisions  of  §  2847,  Burns'  R.  S.  1908,  from  levying  said 
execution  and  selling  real  estate  thereunder  after  the  death  of  the 
judgment  debtor.*'^ 

If  a  lien-holder  files  his  claim  against  the  estate  of  the  deceased 
debtor  it  is  the  duty  of  the  executor  or  administrator  to  pay  such 
claim  in  its  order  out  of  the  personal  estate.®- 

When  an  administrator  sells  land  of  his  decedent  for  the  pur- 
pose of  discharging  a  specific  lien  against  it,  the  creditor  is  en- 
titled to  have  the  money  arising  from  such  sale  applied  to  the 
discharge  of  his  lien  to  the  exclusion  of  the  costs  of  administra- 
tion, funeral  expenses,  and  expenses  of  last  sickness.®' 

It  is  held  that  the  widow  has  many  rights  not  possessed  by  the 

''R.   S.   1876,  p.   534,   §   109;   Kim-  "*"  Kohli  v.  Hall,  141  Ind.  411,  40  N. 

mell  V.  Burns,  84  Ind.  370.  E.  1060. 

"Whetstone    v.     Baker,     140    Ind.  "  Blumenthal    v.    Tibbits,    160    Ind. 

213,  39  N.  E.  868;   Henes  v.  Henes,  70.  66  N.  E.  159. 

5  Ind.  .-Vpp.  100,  31  N.  E.  832.  '"State  v.  Brown,  80  Ind.  425;  Hun- 

■»  Beach  v.  Bell,  139  Ind.  167,  38  N.  sucker  v.  Smith,  49  Ind.  114. 

E.   819;   Noerr  v.   Schmidt,   151   Ind.  "  Ryker  v.  Vawter,  117  Ind.  425,  20 

579,  51  X.  E.  332.  N.  E.  294. 


47-  INDIANA    PROBATE    LAW.  §    293 

husband,  and  that  it  is  the  pohcy  of  the  law  to  so  administer  his 
estate  as  to  secure  to  her,  free  from  incumbrance,  her  interest  in 
his  lands.  For  this  reason  it  is  the  duty  of  the  husband's  admin- 
istrator to  apply  all  the  personal  assets  in  his  hands,  if  necessar>', 
to  pay  liens  on  the  land,  even  to  the  exclusion  of  all  general  cred- 
itors, and  also  to  apply  the  proceeds  uf  the  sale  of  two-thirds  of 
his  real  estate.''^ 

It  is  the  law  of  this  state  that  the  individual  creditor  of  a  de- 
ceased debtor  shall  have  priority  in  the  administration  and  pay- 
ment of  the  individual  assets  of  the  decedent  over  partnership 
creditors,  and  such  partnership  creditors  can  only  have  distribu- 
tion of  the  surplus  of  such  assets,  after  the  payiuent  of  his  indi- 
vidual debts.'-''  The  reverse  of  this  rule  is  true  when  applied  to 
a  distribution  of  the  partnership  assets  and  the  payment  of  part- 
nership debts.  Creditors  of  the  partnership  then  have  the  prior- 
ity as  to  payment. 

It  is  well,  perhaps,  in  this  connection  to  call  attention  to  the 
change  in  our  statute  as  regards  the  classification  of  judgments 
for  payment.  The  statutes  of  1876  used  the  words  "judgments 
which  are  liens  on  the  decedent's  real  estate,"  while  the  present 
statute  is  silent  as  to  judgments,  but  as  judgiuents  which  are  not 
barred  by  the  statute  of  limitations  are  "liens  upon  the  real  estate" 
of  the  deceased  judgment  creditor,  it  would  seem  that  they  are 
properly  included  in  clause  five  of  the  section  under  consideration. 
The  priority  accorded  them,  therefore,  is  but  a  recognition  of 
their  quality  as  liens,  and  extends  only  to  the  property  to  which 

**Bowen  v.  Lingle,  119  Ind.  560,  20  bound  to  exhaust  assets  of  the  part- 

N.    E.    534;    Morgan    v.    Sackett,    57  nership  before  proceeding  against  the 

Ind.  580;   Sparrow  v.   Kelso,  92  Ind.  individual  estate  of  a  deceased  part- 

514;   Shobe  v.  Brinson,  148  Ind.  285,  ner.      But   before    such   creditor   can 

47  X.  E.  625;  Lewis  v.  Watkins,  150  participate   with  the   individual   cred- 

Ind.  108,  49  N.  E.  944.  itors  in  the  individual   estate  of  the 

^  Weyer  v.  Thornburg.  15  Ind.  124 ;  deceased  partner,  the  decedent's  in- 
Bond  V.  Nave,  62  Ind.  505;  Hardy  v.  dividual  debts  must  be  paid,  then  the 
Mitchell,  67  Ind.  485 ;  Bake  V.  Smiley,  partnership  liabilities  may  be  satis- 
84  Ind.  212;  Warren  v.  Able,  91  Ind.  lied  either  in  whole  or  in  part  out 
107;  Huff  V.  Lutz,  87  Ind.  471;  New  of  what  remains.  Small  v.  Davis,  12 
Market  Nat.  Bank  v.  Locke,  89  Ind.  Ind.  App.  635,  40  N.  E.  934;  Warren 
428.      A    partnership    creditor    is    not  v.  Farmer,  100  Ind.  593. 


§    294  PAYMENT    OF    CLAIMS    AND    EXPENSES.  473 

they  attach  as  such  hens,  and  so  far  as  such  property  is  concerned 
are  payable  in  the  order  of  their  seniority.  But  when  it  comes  to 
sharing  in  the  general  assets  of  the  estate  other  than  the  par- 
ticular^'property  to  which  they  attach  as  Hens,  they  ^ are  payable 
equally  or  ratably  without  regard  to  their  seniority.'" 

The  preference  is  given  only  to  judgments  rendered  in  the  life- 
time of  the  debtor,  and  in  no  case  does  it  extend  to  judgments 
which  may  be  rendered  against  the  executor  or  administrator.^' 

But  where  land  has  been  sold  by  the  executor  or  administrator 
against  which  were  judgment  liens,  and  by  order  of  court  the 
lien  of  such  judgments  was  transferred  to  the  funds  arising  from 
such  sale,  the  judgments  have  no  priority  over  expenses  of  ad- 
ministration, funeral  expenses,  and  expense  of  last  sickness; 
these,  together  with  the  widow's  statutory-  allowance,  are  entitled 
to  payment  before  judgments,  even  where  the  estate  is  being  set- 
tled as  an  insolvent  estate.'^ 

§  294.  Payment  by  order.— Upon  the  filing  of  any  of  the 
accounts  required  by  this  act  and  upon  its  appearing  to  the  court 
that  the  estate  is  clearly  solvent,  the  court  shall  order  the  distribu- 
tion of  the  moneys  so  received  among  the  creditors  of  the  de- 
ceased, whose  claims  have  been  allowed  according  to  the  order  of 
classes  before  set  forth:  Provided.  That  the  court  may,  if  the 
same  be  found  necessary  to  protect  the  interest  of  the  estate,  or 
to  secure  to  the  widow  of  the  decedent  her  interest  in  his  real 
e'^tate.  order  the  pavment  out  of  such  moneys  of  any  specific  hen 
upon  the  real  estate  of  the  decedent:  the  court  may  order  the 
moneys  to  be  distributed  by  the  executor  or  administrator,  or 
may  require  the  same  to  be  paid  in  the  court  and  distributed  by 
the  clerk  thereof.'^ 

^Kerr  v.  Wimer,  40  Mo.  544;  Bas-  Mo.   290,   42    S.   W^ 820 ;    Parker   v. 

sett   V.    Slater,   81    Mo.   75;   King  v.  Gainer,  17  Wend    (N.  Y.)  559. 

Morris    40   G^.   63;    Tucker   v.   Yell,  ^  Snyder  v.  Thieme  &^;  ^rew    Co., 

2      Ark.    420;    Trust    v.    Harned,    4  1^3  Tnd.  659^  90  N^  E^314     Su  hvan 

Bradf.   (N.  Y.)  213.  v.   Horner,  41   N.   J.   Eq.  299,  7  Atl. 

-  Davis  V.  Smith,  5  Ga.  274,  48  Am.  411. 

Dec.  279;   Rutledge  v.   Simpson,  141  ^  Burns'  R.  S.  1908.  §  2907. 


474  INDIANA  PROBATE  LAW.  §  295 

An  administrator  or  executor  has  a  claim  superior  to  that  of 
the  heirs  to  the  assets  of  a  decedent's  estate  until  all  the  debts 
have  been  paid  ;""  and  until  the  debts  of  an  estate  are  paid,  a  cred- 
itor cannot  complain  that  such  executor  or  administrator  keeps 
possession  of  the  money  of  the  estate,  and  does  not  pay  the  same 
into  court. ®^ 

If  an  executor  or  administrator  has  paid  a  just  and  valid  claim 
he  is  entitled  to  credit  therefor,  although  such  claim  was  never 
filed  or  allowed  against  the  estate. °^ 

Among  creditors  of  equal  degree — that  is.  in  the  same  class — 
the  executor  or  administrator  may  exercise  his  pleasure  as  to 
whom  he  will  pay  first.  It  is  a  matter  within  his  own  discretion. 
The  order  must  conform  to  the  statute  determining  the  priority 
of  debts,  for  neither  the  court  nor  the  administrator  have  power 
to  change  the  priority  thus  fi.xed."^ 

§  295.  Penalty  for  delaying  payment. — Nothing  in  the  pre- 
ceding section  shall  operate  to  prevent  or  delay  the  payment  of 
any  claim  that  shall  have  been  allowed  if  the  estate  be  clearly 
solvent ;  but  it  shall,  in  such  case,  be  the  duty  of  the  executor  or 
administrator,  so  fast  as  money  shall  come  in  his  hands,  to  pay 
off  the  claims  that  have  been  allowed,  giving  preference,  if  any 
exist  at  the  time  of  payment,  as  prescribed  in  the  section  prescrib- 
ing the  order  of  payment.  If  any  executor  or  administrator  fail 
or  refuse  to  pay  any  claim  when  he  has  moneys  in  his  hands 
applicable  to  that  purpose,  he  shall  be  chargeable  with  interest 
on  such  claim  for  such  time  as  payment  thereof  shall  have  been 
wrongfully  delayed,  and  shall  also  be  liable  in  a  suit  on  his  bond, 
for  the  amount  of  the  claim  and  ten  per  cent,  damage  thereon.®* 

It  is  the  policy  of  the  law  that  claims  shall  be  paid  as  soon  as 
the  executor  or  administrator  realizes  funds  out  of  which  they 

^'Bearss    v.    Montgomery,    46    Ind.  Goodbub   v.    Hornung,    127   Ind.   181, 

544.     The  question  as  to  whether  or  26  N.  E.  770. 

not  a  claim   should  be  paid  as   pre-        "  State  v.  Lemonds,  29  Ind.  437. 
ferred  can  be  raised  at  the  time  of         ®^Wysong  v.    Nealis,    13   Ind.   App. 

the  consideration  of  the  final  report,  165,  41  N.  E.  388. 
either  bv  a  petition  or  bv  exceptions.        "Jenkins  v.  Jenkins,  63  Ind.  120. 

"  Burns'  R.  S.  1908,  §  2908. 


§   296  PAYMENT    OF    CLAIMS    AND   EXPENSES.  475 

can  be  paid ;  and  if  he  has  the  money  in  hand  he  can  be  compelled 
to  pav  even  before  the  expiration  of  the  year."'' 

§  296.  Interest  on  claims. — By  the  last  section  of  the  stat- 
ute just  quoted,  it  will  be  seen  that  "if  an  executor  or  administra- 
tor fail  or  refuse  to  pay  any  claim  when  he  has  moneys  in  his 
hands  applicable  to  that  purpose,  he  shall  be  chargeable  with  the 
interest  on  such  claim  for  such  time  as  payment  thereof  shall 
have  been  wrongfully  delayed."  This  provision  of  the  statute  is 
in  the  nature  of  a  penalty  for  the  negligence  of  the  executor  or 
administrator,  and  hardly  goes  to  the  liability  of  an  estate  for 
interest  u[K)n  claims  allowed. 

As  a  general  rule,  an  administrator  or  executor  is  not  charge- 
able with  interest  upon  the  money  of  the  estate  in  his  possession 
and  control.  But  where  it  is  the  duty  of  an  executor  or  admin- 
istrator to  pay  money  in  his  hands  to  creditors,  legatees  or  dis- 
tributees of  the  estate,  and  he  needlessly  delays  such  payment  and 
neglects  to  make  it  when  such  payment  is  due,  or  where  he  has 
unreasonably  and  causelessly  delayed  the  final  settlement  of  the 
estate,  and  has  used  the  funds  of  the  estate  for  his  own  purposes, 
he  will  be  chargeable  with  interest ;  and  in  an  aggravated  case  it 
is  the  dutv  of  the  court  to  charge  him  with  compound  interest, 
computing  the  interest  annually.""  The  principle  deducible  from 
the  decided  cases  upon  this  subject  is  that  one  exercising  such 
trust  is  liable  for  interest  when  he  has  improperly  kept  the  bene- 
ficiaries out  of  the  use  of  their  money;  and  mere  delay  in  closmg 
up  an  estate  is  held  to  sometimes  be  prima  facie  evidence  of  this." 

"Jewett   V.    Hurrle,    121    Ind.   404,  ncy's    fees   when   the   contract   creat- 

23  N.  E.  262.     So  long  as  there  are  ing  the  lien  provides   for  such   fees. 

debts  to  be   paid,   a   creditor   cannot  Jewett  v.  Hurrle,  121  Ind.  404,  23  N. 

complain   because   the   money   is   not  E.  262. 

paid  into  court.     State  v.   Lemonds,  •'Johnson  v.  Hedrick,  33  Ind.  129, 

29  Ind.  437.     If  property  is  sold  to  5    .\m.    Rep.    191;    Brackenridge    v. 

pay  a   specific   lien   thereon,   and  the  Holland,    2    Blackf.    (Ind.)    377,    20 

executor  refuses  to  pay  the  lien  wilJi-  Am.   Dec.    123;   Roberts  v.   Malin,   5 

out  an  order  of  court  before  the  ex-  Ind.   18;   Case  v.  Case,  51   Ind.  277; 

piration  of  a  year  from  the  issuing  Shaw  v.  Bates,  53  Vt.  360. 

of  letters,  the  creditor  is  entitled  to  "Manning    v.    Manning,    1    Johns, 

such   order,   and  may   recover   attor-  Ch.   (N.  Y.)  527;  Dufour  v.  Dufour, 


476  INDIANA    PROBATE    LAW.  §    297 

As  to  the  liability  of  the  estate  of  the  decedent  for  interest 
upon  claims,  it  may  be  said  tliat,  with  the  exception  of  contracts 
and  obligations  which  expressly  bear  interest,  unless  the  statute 
prescribes  a  different  rule,  the  claims  of  creditors  are  to  be 
treated  with  respect  to  the  matter  of  interest  just  as  they  stood 
at  the  time  of  the  decedent's  death."'  No  interest  can  be  allowed 
upon  a  claim,  even  though  demanded,  unless  the  paper  or  contract 
which  is  the  basis  of  the  claim  shows  that  interest  results  as  a 
matter  of  course  from  the  facts  stated."" 

As  to  whether  or  not  a  distributee  or  legatee  is  entitled  to  inter- 
est on  his  share  of  the  ancestor's  estate  from  the  time  of  such  an- 
cestor's death  is  a  question  upon  which  the  courts  are  not  agreed.^ 
Facts  and  circumstances  must  largely  control,  and  our  courts 
have,  in  a  general  way,  given  their  sanction  to  the  doctrine  that 
interest  may  be  allowed  in  certain  cases. - 

^  297.  Payment  of  money  into  court. — By  act  of  the  legis- 
lature, approved  June  17,  1852.  relating  to  the  settlement  of  de- 
cedents' estates,  an  executor  or  administrator  was  authorized  to 
pay  money  of  the  estate  in  his  hands  into  court,  which  money  was 
distributed  and  paid  out  by  the  clerk  of  such  court.  But  the 
amendatory  act  of  1853  niodified  this  law  so  that  it  was  no  longer 
the  duty  of  the  clerk  of  the  court  to  receive  such  money  from  an 

28  Ind.  421;  .\orris's  Appeal,  71   Pa.  =  Case  v.  Case.  51  Ind.  m\  Clark  v. 

St.  106;  Vance  v.  Vance,  Z2  La.  Ann.  Helm.  130  Ind.  117,  29  N.  E.  568,  14 

1^6-  L.  R.  A.  716n.     In  Spurway  v.  Glynn, 

="'  Schoulcr  Exrs.  &  Admrs.,  §  440 ;  9  Ves.  Jr.  483,  the  testator  had  de- 
Davis  V.  Wright,  2  Hill  (S.  Car.)  vised  to  the  trustees  certain  real  es- 
560;  Sue.  Durnford,  1  La.  Ann.  92;  tate.  to  the  intent  and  purpose  that 
Holmes  v.  Lusk,  78  Ky.  548.  the  trustees  should,  by  demise,  sale 
^  ""  Aguirre  v.  Packard.  14  Cal.  171,  or  mortgage  of  his  real  estate  to 
/3  Am.  Dec.  645.  them  devised,  or  anv  part  thereof,  or 

'Davies  v.  Hughes.  86  Va.  909,  11  by   or   out  of   the   rents   and   profits, 

S.    E.    488;    Patterson's    Appeal,    128  borrow  or  take  up  the  interest,  or  raise 

Pa.   St.  269,   18  Atl.  430;  Jackson  v.  or    levy,    with    all    convenient    speed 

Jackson,  28   Miss.   674.  64  Am.   Dec.  after   his   decease,   the   sum   of    four 

114;  Kyle  v.  Conrad,  25  W.  Va.  760;  hundred  pounds  sterling,  and  pay  the 

Roberson  v.  Nail,  85  Tenn.  124,  2  S.  same  to  the  plaintiff.     The   plaintiff 

W.  19;  King  v.  Talbot,  40  N.  Y.  76;  was    held   to   be    entitled    to    interest 

Williams  V.  Williams,  15  Lea  (Tenn.)  from  the  death  of  the  testator 
438;  2  Woerner  Law  Admin.  1222. 


§    297a  PAYMENT    OF    CLAIMS    AND    EXPENSES.  477 

executor  or  administrator ;  nor  was  such  executor  or  administra- 
tor authorized  to  make  any  such  payments  into  court.  The  legis- 
lature, by  this  act,  took  away  all  authority  from  the  court  to  re- 
quire, even  by  direct  order,  the  payment  of  money  into  court  by 
an  executor  or  administrator.  He  was  left  solely  responsible  for 
the  proper  application  of  the  funds  coming  into  his  hands  in  his 
trust  capacity  f  but  by  the  statute  above  set  forth  it  will  be  seen 
that  the  earlier  rule  is,  to  a  certain  extent,  revived,  and  the  court 
"may  require"  an  executor  or  administrator  to  pay  money  of  the 
estate  into  court  to  be  distributed  by  the  clerk  of  such  court. 

§  297a.  Payment  to  heirs,  etc.,  before  final  settlement. — An 
executor  or  administrator  who,  without  an  order  of  court,  volun- 
tarily pays  a  part  of  the  assets  of  the  estate  to  the  widow,  heirs 
or  legatees,  before  the  final  settlement  of  the  estate,  leaving  in- 
sufficient means  in  his  hands  to  pay  the  debts  of  the  estate  and 
the  expenses  of  administration,  and  compensate  himself  for  his 
senices,  cannot  recover  from  the  parties  to  whom  such  payments 
were  made  sufficient  money  for  the  needs  of  the  administration. 
The  loss  is  his,  for  by  such  voluntary  payment  he  is  guilty  of 
waste  and  is  not  entitled  to  relief.* 

To  make  such  payment  a  voluntary  payment  so  as  to  preclude 
a  recover}-  from  the  distributee  to  whom  the  payment  was  made, 
it  must  have  been  made  with  full  knowledge  of  all  the  facts,  or 
Avith  full  opportunity  of  obtaining  such  knowledge,  otherwise 
such  distributee  is  liable  to  refund,  if  necessary,  for  the  payment 
of  the  debts  and  expenses  of  the  estate." 

The  better  practice  under  our  statute  is  to  take  a  refunding 
bond  where  a  distributive  share  is  paid  before  final  settlement  of 
the  estate. 

"Dufour    V.    Dufour,   28    Ind.    421;  'Smith     v.     Smith,    76    Ind.     236; 

Jenkins    v.    Lemonds,    29    Ind.    294;  Stokes  v.  Goodykoontz,  126  Ind.  535 

State  V.  Fleming,  46  Ind.  206;   Scott  26   X.   E.   391;   Wolf  v.   Beaird,   123 

V    State,  ex  rel,  46  Ind.  203.  111.  585,  15  X.  E.  161,  5  Am.  St.  565; 

*E-bert  V.   Rush,  7  Ind.  706;   Mc-  Rogers     v.     Weaver,     5     Ohio     536; 

dure  V.   McClure.   19  Ind.   185.     But  Walker     v.      Hill,      17     Mass.     380 ; 

see    Smith    v.    Smith,    76    Ind.    236;  Wheadon  v.  Olds,  20  Wend.   (N.  Y.) 

Stokes  V.  Goodykoontz,  126  Ind.  535,  174 ;  Alexander  v.  Fisher,  18  Ala.  374. 
26  X.  E.  391. 


478 


INDIANA    PROBATE    LAW. 


297a 


It  was  early  the  law  in  this  state  that  the  heirs  and  distributees 
of  an  intestate  could  require  the  administrator  to  make  a  partial 
distribution  of  the  assets  in  his  hands.  But  it  is  necessary  that  the 
estate  be  clearly  solvent  before  the  court  would  make  an  order 
for  such  partial  distribution;  for,  as  a  rule,  the  heirs  and  distribu- 
tees are  not,  as  a  matter  of  right,  entitled  to  any  part  of  the  as- 
sets of  the  estate  until  after  the  debts  are  paid.  And  even  where 
a  partial  distribution  is  ordered  a  refunding  bond  should  be  re- 
quired of  the  distributee." 


'Burns'  R.  S.  1908,  §2903;  Con- 
ner V.  Hawkins,  8  Blackf.  (Ind.) 
236;  Chandler  v.  Morrison,  123 
Ind.  254,  23  N.  E.  160;  Moore  v. 
State,  49  Ind.  558.  Advances  to 
distributees  prior  to  final  settlement 
can  only  be  made  in  compliance  with 
an   order   of   court.     Hayes   v.   Mat- 


lock, 27  Ind.  49.  On  a  proper  peti- 
tion the  court  may  order  a  partial 
distribution  prior  to  a  final  settle- 
ment of  the  estate,  and  in  such  pro- 
ceeding may  consider  the  question  of 
advancements  made  by  the  decedent 
Chapell  V.  Shuee,  117  Ind.  481,  20  N. 
E.  417. 


CHAPTER  XIII. 


ACCOUNTING   AND    SETTLEMENT. 


298.  Power  to  compel  accounts. 

299.  What  must  be  accounted  for. 

300.  When  liable  for  money  depos- 

ited. 

301.  Not    chargeable    with    loss    by 

casualty,  etc. 

302.  Liability  of  executor,  etc.,   for 

interest. 

303.  The    first    account,    what    the 

statute  requires. 

304.  Notice  of  a  hearing  on  the  ac- 

count. 

305.  The  hearing  and  order. 

306.  Accounts    by    joint    executors 

and  administrators. 

307.  Filing  further  accounts. 

308.  Effect  of  approval  of   current 

report. 

309.  Vouchers  must  be  filed. 

310.  When  the  court  may  order  final 

settlement. 

311.  Allowance     for     compensation 

for  services. 


?  312.  Compensation  allowed  by  will. 

313.  Allowance  for  attorney  fees. 

314.  Settlement  on   resignation,   re- 

moval, etc. 

315.  The  account  in  final  settlement. 

316.  The   time    when    final    account 

shall  be  filed. 

317.  Xo  final  settlement  with  claim 

pending. 

318.  Notice  of  final  settlement. 

319.  Contesting  the  report. 

320.  The  order  of  final  settlement. 

321.  Re-opening    or     setting    aside 

final  settlements. 

322.  Same— Party  must  show  inter- 

est. 

323.  Same— For  what  causes. 

324.  Same — Limitation  to  action. 

325.  Same— Only  set  aside  in  direct 

proceeding. 
325a.  Accounting  by  trustees   of  be- 
nevolent devise. 


§  298.  Power  to  compel  accounts. — By  the  common  law, 
on  the  theory  that  the  executor  or  administrator  took  the  absolute 
title  to  and  dominion  over  the  personal  estate  of  his  decedent, 
it  was  not  the  practice  of  the  probate  courts  to  require  such  offi- 
cers to  render  an  account  of  their  administration,  nor  even  to 
compel  an  inventory.  About  the  only  way  an  accounting  could 
be  secured  was  at  the  suit  of  some  person  interested  in  the  estate.' 


'Walker   Exrs.,    150;   Greenside   v 


Benson,  3  Atk.  248;  Roberts  v.  Rob- 
erts, 2  Lee  399 ;  Lomax  on  Exrs.,  307. 

479 


480  INDIANA  PROBATE  LAW.  §  298 

The  practice  in  this  respect  in  the  probate  courts  of  most,  if 
not  all,  of  the  states  of  our  Union,  has  been  simplified  by  legisla- 
tion, and  executors  and  administrators  may  now  be  comi^elled 
to  render  an  account  of  their  administration  without  waiting  for 
creditors  or  distributees  to  apply  for  an  order  to  that  effect. 
Most  of  the  statutes  fix  stated  times  at  which  executors  and  ad- 
ministrators must  report  the  condition  of  their  account  with  the 
estate  and  various  penalties  are  provided  to  insure  prompt  ac- 
counting and  settlement. 

Our  statute  requires  an  account  to  be  filed  in  the  court  of  pro- 
bate jurisdiction  "at  the  end  of  one  year  from  the  issuing  of  let- 
ters and  notice  thereof  or  as  soon  thereafter  as  the  sale  notes  for 
personal  property  shall  mature.""  And  it  is  further  provided  that 
if  any  executor  or  administrator  shall  fail  to  render  such  account 
at  the  end  of  the  year  ne.xt  after  notice  of  his  api)ointment  lie 
shall  be  ciicd  by  the  coiul  tt»  tde  such  account  within  a  time  lim- 
ited by  the  court;  and  uixju  failure  to  comply  with  such  require- 
ment, he  shall  be  proceeded  against  as  for  a  contempt,  and  shall 
be  liable  to  removal  from  his  trust.' 

It  is  further  provided  that  it  shall  be  the  duty  of  the  judge,  on 
the  first  day  of  each  temi  of  court,  to  call  the  estates  pending  in 
court  for  reports  due  from  executors  or  administrators,  as  pro- 
vided for  in  this  act:  and  if  any  executor  or  administrator  shall 
fail  to  file  a  report  when  (hie,  such  judge  shall  enter  an  order 
that  a  citation  be  issued  for  such  executor  or  administrator,  re- 
quiring him  to  make  and  file  such  report,  if  the  same  is  not  filed 
in  twenty  days,  and  compel  the  making  and  filing  of  such  report 
by  attachment.  And  the  executor  or  administrator  shall  be  indi- 
vidually liable  for  all  the  costs  occasioned  by  such  citation  and  at- 
tachment;  said  citation  to  be  issued  within  ten  days  l>efore  the 
next  term  of  court  thereafter.* 

§  299.  What  must  be  accounted  for. — As  one  writer  says: 
"The  object  of  compelling  executors  and  administrators  to  ren- 

-  Burns'  R.  S.  1908.  §  2906.  *  Burns'  R.  S.  1908,  §  2909. 

'  Burns'  R.  S.  1908,  §  2915 ;  Ex  parte 
Hayes,  88  Ind.  1. 


§    299  ACCOUNTING    AND    SETTLEMENT.  48 1 

der  an  account  of  their  administration  at  stated  periods  is  very 
obvious,  and  highly  beneficial  to  all  the  parties  having  an  interest 
in  the  estate,  whether  as  creditors,  legatees,  or  next  of  kin,  or  as 
executors  or  administrators.  It  is  to  furnish,  by  the  records  of 
the  probate  courts,  inexpensive,  full,  and  accurate  information 
of  the  condition  of  estates,  so  that  all  persons  concerned  therein 
may  resort  to  these  records  with  confidence,  ascertain  their 
rights,  correct  errors  in  the  accountant's  administration,  and  take 
measures  to  protect  themselves  against  loss  by  his  fraud  or  negli- 
gence. To  accomplish  this  object  it  is  necessary  that  the  account 
should  constitute  a  full  and  explicit  exposition  of  the  condition 
of  the  estate,  showing  what  property  has  come  into  the  adminis- 
trator's hands,  what  he  has  disposed  of  or  disbursed,  what  re- 
mains, and  what  the  liabilities  are  so  far  as  ascertained."^ 

Every  executor  and  administrator  shall  be  chargeable  at  their 
value,  with  all  goods,  chattels,  moneys,  rights,  credits  and  effects 
of  the  deceased  which  shall  have  come  to  his  hands,  and  which, 
by  law,  are  to  be  administered,  although  they  may  not  have  been 
included  in  an  inventory ;  also,  with  all  inventories  of  real  estate 
sold,  leased,  or  mortgaged  for  the  payment  of  debts  or  legacies, 
and  with  all  increase,  interest,  profit,  and  income  which  shall  in 
any  way  come  to  his  hands  from  the  estate  of  the  deceased.  And 
in  accounting  therefor,  he  shall  be  entitled  to  credit  for  the 
amount  taken  by  the  widow  of  the  deceased;  the  loss,  if  any,  on 
the  sale  of  personal  or  real  estate;  the  appraised  value  of  prop- 
erty inventoried  by  him,  and  lost  or  destroyed  without  any  fault 
or  negligence  of  his  own ;  the  losses  and  deductions  by  reason  of 
the  compounding  of  debts;  the  discharge  from  the  collection  of 
insolvent  and  desperate  claims,  set-offs,  counter-claims,  and  pay- 
ments allowed  against  claims  due  the  estate;  and  for  moneys 
legally  paid  out  on  expenses  of  administration  and  claims  against 
the  estate  and  legacies,  and  advanced  to  the  heirs  under  the  order 
of  court.* 

An  administrator  or  executor  is  chargeable  with  all  the  per- 

•  Woerner  Am.  Law  Admin.,  §  509 ;        '  Burns'  R.  S.  1908,  §  2911. 
Fletcher   v.   Nicholson,  45   Ind.   App. 
375,  90  X.  E.  910. 

31— Pro.  Law. 


482  INDIANA  PROBATE  LAW.  §  3OO 

sonal  property  of  the  estate  of  his  decedent,  which  is  by  law  to 
be  administered,  tliat  conies  to  his  possession  or  knowledge, 
whether  such  property  has  been  inventoried  or  not :  but  it  is  not 
proper  to  charge  him  with  property  which  he  has  failed  to  inven- 
tory for  the  reason  that  the  existence  of  such  property  was  un- 
known to  him." 

He  should  charge  himself  with  any  debt  he  may  be  owing  the 
estate.® 

But  he  is  not  bound  to  charge  himself  with  a  debt  for  which  he 
is  only  contingently  liable,  nor  with  one  owing  to  a  former  ad- 
ministrator of  the  decedent." 

The  inventory  is  the  foundation  of  the  account  and  the  aggre- 
gate amount  of  it  should  constitute  the  first  charge  against  execu- 
tor or  administrator.  To  this  should  lie  added  any  excess  of  the 
sale  bill  over  the  inventory,  as  well  as  any  additional  property 
inventoried.  The  inventory  is  not  conclusive  though,  and  the 
truth  of  it  may  be  inquired  into  on  final  settlement.*" 

§300.  When  liable  for  money  deposited, —  It  an  executor 
or  administrator  deposit  moneys  belonging  to  his  decedent's  es- 
tate, in  a  bank  of  good  repute,  and  which  he  has  good  reason  to 
believe  is  solvent,  he  cannot  be  held  liable  for  the  loss  of  such 
money  resulting  from  the  failure  of  such  bank.  Such  insolvency 
will  not  afifect  him  unless  he  knew  it,  or  unless  it  was  generally 
known,  or  unless  there  were  general  rumors  affecting  injuriously 
the  credit  of  the  bank,  which  were  known  to  such  executor  or  ad- 
ministrator, or  might  have  been  so  known  by  reasonable  care 
and  diligence  on  his  part.  His  liability  in  such  a  case  is  a  ques- 
tion of  negligence,  and  where  there  is  no  evidence  tending  to 
show  negligence  there  can  be  no  liability." 

'  State,  ex  rel.,  v.  Scott,  12  Ind.  529.  merit.     Condit    v.    Winslow,    106    Ind. 

'State  V.  Gregory,  119  Ind.  503,  22  142.  5  N.  E.  751. 

N.  E.   1 ;  Rabb's  Estate.  16  Ohio  St.  '  Shields  v.  Odell,  27  Ohio  St.  398. 

273:   Baucus  v.    Stover,  89  N.   Y.   1.  '"Weed   v.    Lermond.   33   Me.   492; 

Debts  owing  by  an  executor  or  admin-  McGinity  v.  McGinity.  19  R.  I.  510.  34 

istrator  to  an  estate  must  be  account-  Atl.  1114. 

ed  for  on   final   settlement,   although  '^  Norwood  v.  Harness,  98  Ind.  134. 

such    executor    or    administrator    be-  49  Am.  Rep.  739.     The  question  in  all 

comes    insolvent    after    his    appoint-  such  cases  is,  was  the  trustee  reason- 


lOO 


ACCOUNTING    AND    SETTLEMENT. 


483 


But  where  an  administrator  or  executor  deposits  funds  of  the 
estate  in  a  bank  in  his  individual  name,  any  loss  which  occurs  by 
reason  of  the  failure  of  such  bank  is  his  individual  loss,  and  does 
not  relieve  him  from  liability  to  account  for  and  pay  over  the 
full  amount  of  such  deposit.^^ 

The  commingling  of  money  or  property  of  the  estate  with  his 
own  by  an  executor  or  administrator  so  that  the  identity  of  the 
trust  fund  is  lost,  is  a  breach  of  the  trust  for  which  he  will  be 
held  liable  if  any  loss  occurs.'^  The  mere  fact  that  in  such  case 
the  executor  or  administrator  acted  in  good  faith  and  with  ordi- 
nary prudence  is  no  excuse/* 

And  if  he  deposits  funds  of  the  estate  in  a  bank  in  his  indi- 
vidual name,  having  no  other  funds  on  deposit,  he  will  be  liable 
in  case  of  loss,  although  at  the  time  of  making  the  deposit  he 
informed  the  bank  that  the  funds  were  trust  funds,  and  held  by 
him  only  in  that  capacity.'^ 

able  and  diligent  in  making  or  contin- 
uing the  deposit.  In  Cornwell  v. 
Deck,  8  Hun  (N.  Y.)  122,  an  admin- 
istratrix having  kept  the  money  of  the 
estate  in  her  hands  instead  of  deposit- 
ing it  in  a  bank,  the  nearest  bank  be- 
ing twelve  miles  distant,  the  money 
was  stolen  and  she  was  held  liable. 
The  court  said :  "It  is  repeatedly  held 
that  if  a  trustee,  in  the  exercise  of 
his  best  judgment,  deposits  money  in 
a  bank  of  good  repute,  he  is  not  liable 
in  the  event  of  the  failure  of  the 
bank.  Her  husband  had  kept  a  bank 
account,  of  which  she  was  aware.  *  * 
She  should  have  done  the  same." 

^-'Corya  v.  Corya,  U9  Ind.  593,  22 
X.  E.  3;  Xaltner  v.  Dolan,  108  Ind. 
500,  8  N.  E.  289,  58  Am.  Rep.  61; 
Fletcher  v.  Sharpe,  108  Ind.  276,  9  N. 
E.  142.  "Trust  money  may  be  depos- 
ited for  a  reasonable  time  in  a  bank 
having  good  credit,  if  the  deposit  is 
made  to  the  credit  of  the  trust  estate, 
and  not  in  the  trustee's  individual 
name   and   account;   and   the   trustee 


does  not  become  liable  for  a  loss  oc- 
casioned by  a  failure  of  the  bank  un- 
der these  circumstances."  2  Pom.  Eq. 
Jur..  §  1067;  McCabe  v.  Fowler,  84  N. 
Y.  314.  While  it  is  presumed  in  its 
trust  character,  if  he  exercises  the 
same  caution  in  respect  to  depositing 
it.  as  a  prudent  man  would  in  regard 
to  his  own  money  and  a  loss  happen 
he  will  be  excused.  Norwood  v.  Har- 
ness, 98  Ind.  134,  49  Am.  Rep.  739; 
State  V.  Greensdale,  106  Ind.  364,  6 
X.  E.  926,  55  Am.  Rep.  753. 

'^  Gilbert's  Appeal,  78  Pa.  St.  266; 
Kirkman  v.  Benham,  28  Ala.  501 ;  Net- 
tles V.  McCown,  5  S.  Car.  43;  Leake 
v.  Leake,  75  Va.  792;  McKenzie  v. 
Anderson,  2  Woods  (U.  S.)  357; 
Wren  v.  Kirton,  11  Ves.  377;  Acker- 
man  V.  Emott,  4  Barb.  (N.  Y.)  626. 

"Commonwealth  v.  McAlister,  28 
Pa.  St.  480 ;  Henderson  v.  Henderson, 
58  Ala.  582. 

"'  Williams  v.  Williams,  55  Wis.  300, 
12  N.  W.  465,  13  N.  W.  274,  42  Am. 
Rep.  708,  contra.     See  Atterberry  v. 


484  INDIANA  PROBATE  LAW.  §  3OI 

To  create  a  liability  there  must  be  an  actual  loss  while  the 
funds  are  so  mingled.^"  And  to  avoid  liability  the  trust  funds 
must  be  kept  separate  by  some  plain  and  unmistakable  act.^' 

§  301.  Not  chargeable  with  loss  by  casualty,  etc. — Ordi- 
narily an  executor  or  administrator  is  only  held  liable  to  the 
exercise  of  reasonable  care  in  the  preservation  and  protection 
of  the  property  of  the  estate  in  his  hands,  and  is  not  chargeable 
with  loss  by  casualty,  such  as  accidental  fire,  robbery,  theft  and 
the  like,  to  which  his  own  negligence  or  bad  faith  have  in  no  way 
contributed." 

He  must  adopt  such  precautions  against  loss,  and  exercise  such 
forethought  for  the  security  of  property  as  comes  into  his  care 
as  ordinarily  prudent  men  are  accustomed  to  employ  in  regard  to 
their  own  property. '° 

It  is  not  incumbent  upon  the  executor  or  administrator  to  in- 
sure or  continue  insurance  upon  property  of  his  decedent.^" 

If  it  becomes  necessary  for  an  executor  or  administrator,  in 
the  conduct  of  the  ordinary  course  of  the  business  of  the  estate, 
to  employ  an  agent  therein,  and  if  in  such  employment  he  has 
acted  in  good  faith,  and  been  guilty  of  no  negligence  in  employ- 
ing the  particular  person,  he  cannot  be  held  liable  for  any  loss 

McDuffee,  31  Mo.  App.  603;  Arguello,  to  judgment.     It  is  contended  that  the 

Estate  of,  97  Cal.  196,  31  Pac.  937.  administrator  ought  to  have  kept  the 

'"  Kirby  v.  State,  51  Md.  383.  property  insured,  and  that  he  is  liable 

''  Ditmar  v.  Bogle,  53  Ala.  169.  for   having  neglected   to   do   so.     No 

"  Rubottom  V.  Morrow,  24  Ind.  202,  authority  is  cited  for  this  proposition, 

87  Am.   Dec.  324;   Neff's  Appeal,  57  and  we  know  of   none.     What  little 

Pa.  St.  91 ;  Stevens  v.  Gage,  55  N.  H.  there  is  in  the  books,  so  far  as  our 

175,  20  Am.  Rep.  191 ;  State  v.  Mea-  search   and  that   of   counsel   has   ex- 

gher,  44  Mo.  356,  100  Am.  Dec.  298;  tended,   is   the   other  way.     Williams 

Campbell  v.  Miller,  38  Ga.  304,  95  Am.  on    E.xrs.,    1638,    2    Har.    Dig.    2998. 

Dec.  389.     In  Rubottom  v.  Morrow  it  These  works  cite  Bailey  v.  Gould,  4 

is  said :    "A  mill,  which  was  leasehold  Y.  &  Coll.  221." 

property,  was  destroyed  by  accidental  '"  Cooper  v.  Williams,  109  Ind.  270, 

fire,  being,  at  the  time  it  was  burned,  9  X.  E.  917 ;  Rice's  Estate,  14  Phila. 

let  to  responsible  parties  who,  by  the  (Pa.)  325. 

terms  of  their  lease,  were  bound  to  "^  Dortch  v.  Dortch,  71  N.  Car.  224; 

repair,  but  who  became  insolvent,  so  Rubottom  v.  Morrow,  24  Ind.  202,  87 

that  the   money  was   not  made  upon  Am.  Dec.  324. 
their  liability,  though  it  was  reduced 


§    302  ACCOUNTING    AND    SETTLEMENT.  485 

occasioned  by  the  misconduct  of  such  individual.  Necessity  for 
such  employment  will  exonerate  the  executor  or  administrator.^* 

It  is  said  by  one  writer  that  "if  the  personal  property  belong- 
ing to  the  estate  be  destroyed  or  captured  by  a  public  enemy,  or 
perish,  or  deteriorate  from  some  internal  defect,  or  through  the 
operation  of  natural  causes,  or  in  general  because  of  inevitable 
accident,  the  executor  or  administrator  who  has  honestly  exer- 
cised ordinary  care  and  diligence  in  averting  or  lessening  the 
mischief  escapes  personal  liability  for  the  loss.  He  is  himself  no 
insurer  against  accidents,  though  average  prudence  as  to  certain 
kinds  of  property  might  perhaps  have  required  him  to  keep  the 
property  insured  against  loss  by  fire."" 

The  true  rule  is  that  an  executor  or  administrator  is  bound  to 
exercise  that  degree  of  diligence  and  prudence  in  the  care  and 
management  of  the  estate  which  men  of  ordinary  discretion  and 
intelligence  employ  in  like  affairs  of  their  own. 

§  302.  Liability  of  executor,  etc.,  for  interest. — An  execu- 
tor or  administrator  will  be  held  liable  for  any  interest  he  may 
collect  on  debts  and  demands  due  the  estate  of  his  dece- 
dent.-^ And  he  will  be  chargeable  with  interest  on  the  fund  in 
his  hands  belonging  to  the  estate,  where  he  has  needlessly  and 
improperly  kept  the  beneficiaries  of  the  estate  out  of  the  use  of 
their  money;  and  mere  delay  in  making  a  final  settlement  of 
the  estate  is  sometimes  prima  facie  evidence  of  this.  And  where, 
in  a  proper  case,  an  executor  or  administrator  is  so  liable  for  in- 
terest, the  computation  of  such  interest  should  be  made  annually 
and  compounded,  charging  him  with  interest  upon  interest.'^* 

Interest  will  only  be  charged  where  an  executor  or  adminis- 
trator has  actually  received  it ;  or  where  he  retained  money  in  his 

""  Jacobus  V.  Jacobus,  Zl  N.  J.  Eq.  v.    Schenck,   10   Pa.   St.  285,  51   Am. 

17 :  Julian  v.  Abbott,  11  Mo.  580 ;  Mc-  Dec.  478n. 

Closkey  v.  Gleason,  56  Vt.  264,  48  Am.  "-^  Schouler  Exrs.,  314. 

Rep.   770:    Watson  v.   Stone,  40  Ala.  ^  Ante,  §  148;  Ray  v.  Dougherty,  4 

451,  91  Am.  Dec.  484;  Lewis  v.  Reed,  Blackf.  (Ind.)  115. 

11    Ind.    239;    Telford    v.    Barney,    1  =^  Johnson  v.  Hedrick,  33  Ind.  129,  5 

Greene     (Iowa)     575;     Marshall     v.  Am.  Rep.  191;  Dufour  v.  Dufour,  28 

Moore,  2  T.  B.  Mon.  (Ky.)  69;  Blight  Ind.  421. 


486  INDIANA  PROBATE  LAW.  §  303 

own  hands  which  he  ought  to  have  paid  out;  or  where  he  has 
converted  such  money  to  his  own  use."^ 

But  as  a  rule  they  will  not  be  chargeable  with  interest  during 
the  first  year  of  the  administration,  except  such  as  they  have  ac- 
tually received,  unless  they  have  misappropriated  the  funds  dur- 
ing that  time.*" 

An  administrator  is  also  chargeable  with  interest  upon  uncol- 
lected notes  which  bear  interest."' 

Executors  or  administrators  are  not  chargeable  with  interest 
on  funds  which  lie  idle  during  the  pendency  of  their  accounts  in 
court  on  exceptions  thereto,  or  on  appeal,-^  unless  interest  has 
been  received. 

The  courts  show  greater  reluctance  in  charging  executors  or 
administrators  with  interest  on  funds  which  lie  idle  in  their  hands, 
than  in  the  case  of  trustees,  their  duty  being  to  administer  and 
not  to  invest."" 

To  make  out  a  case  for  compound  interest  there  must  be  some 
special  and  i>eculiar  circumstances,  involving  a  breach  of  duty  be- 
yond mere  negligence. ^'^ 

§  303.  The  first  account — What  the  statute  requires. —  The 
statute  provides  that  at  the  end  of  one  year  from  the  issuing  of 
letters,  and  notice  thereof,  or  as  soon  thereafter  as  the  sale 
notes  for  personal  property  shall  mature,  the  executor  or 
administrator  shall  file  in  the  court  issuing  his  letters  a 
true  and  complete  account  of  all  the  assets  of  the  estate 
of  the  decedent  which  shall  have  come  to  his  hands,  and  of  all 
disbursements  made  by  him,  and  all  credits  to  which  he  may  be 
entitled;  in  such  account  he  shall  charge  himself  with  the  amount 
of  each  inventory  of  personal  and  real  estate  filed  by  him,  with 

"-"  Hough  V.  Harvey,  71  HI.  72;  Nor-  "  Stong  v.  Wilkson,  14  Mo.  116. 

ris's  Appeal,  71   Pa.  St.  106 ;  Hall  v.  =*  Yundt's  Appeal,  13  Pa.  St.  575,  53 

Grovier,  25  Mich.  428 ;  Knight  v.  Loo-  Am.    Dec.   496 ;   Young  v.   Brush,  38 

mis,  30  Me.  204;  Lund  V.  Lund.  41  X.  Barb.     (N.     Y.)     294;     Wendell     v. 

H.  355 ;  Perry  Trusts,  §  468.  French,  19  X.  H.  205. 

"^  Brandon  v.  Hoggatt,  32  Miss.  335 :  "^  Wyman  v.  Hubbard,  13  Mass.  232. 

Commonwealth  v.  Mater,   16  Serg.  &  ^Lansing  v.  Lansing,  45  Barb.   (X. 

R.    (Pa.)    416;    Jacot   v.   Emmett,   11  Y.)    182;   Kenan  v.  Hall,  8  Ga.  417; 

Paige  (X.  Y.)  142.  Boynton  v.  Dyer,  18  Pick.  (Mass.)   1. 


503 


ACCOUNTING    AND    SETTLEMENT.  487 


each  item  of  principal  or  interest,  or  both,  collected  by  him,  in 
addition  to  the  amounts  thereof,  as  shown  by  the  inventories  and 
sale  bills  filed  by  him,  with  the  profits  realized  in  the  sales  of 
property;  with  the  kind  and  value  of  all  property  of  the  decedent 
received  by  him  and  not  inventoried,  with  each  claim  and  the 
amount  thereof  due  the  deceased,  and  not  inventoried,  and  with 
all  income,  rents  and  other  increase  of  the  estate  received  by  him 
and  chargeable  to  him  as  such  executor  or  administrator.  He 
shall  also  exhibit  in  such  account  the  total  amount  of  moneys 
received  by  him,  and  the  total  amounts  thereof  paid  out  on  ac- 
count of  the  estate,  and  the  particulars  and  amount  of  each 
claim,  due  or  owing  to  the  estate  and  remaining  unpaid,  and  his 
claim  for  services,  expenses  and  attorney  fees ;  such  account  shall 
be  accompanied  by  the  affidavit  of  the  executor  or  administrator, 
subscribed  by  him,  that  the  account  is  a  true  and  complete  exhibit 
of  his  administration  of  the  estate,  and  upon  the  finding  of  the 
court  upon  any  report  showing  the  receipts  and  expenditures  by 
the  executor  or  administrator,  an  appeal  will  lie  to  the  Supreme 
Court,  as  in  final  judgment.'"'^ 

This  account  may  be  in  the  nature  of  a  current  account,  or 
it  may  be  a  complete  and  final  settlement  of  the  estate.  If  the 
executor  or  administrator  has  collected  all  the  assets  and  paid 
them  out  on  claims  allowed  against  the  estate,  it  is  his  duty  under 
the  law  to  make  a  final  settlement  of  such  estate  after  the  lapse 
of  one  year  from  giving  notice  of  his  appointment.^- 

The  items  of  the  inventory  need  not  be  repeated  in  the  account 
but  only  the  gross  amount  thereof.^^ 

All  assets  of  the  estate  received  by  the  executor  or  adminis- 
trator whether  inventoried  or  not  and  all  profits  derived  by  him 
from  the  assets,  either  directly  or  indirectly,  must  be  charged 

"  Burns'  R.  S.  1908.  §  2906.  of  the  claim  did  not  justify  the  settle- 

"  Shirley  v.  Thompson,  123  Ind.  454,  ment  in  advance  of  the  time  named  in 

24  N.  E.  253;  Roberts  v.  Spencer,  112  the  statute.    Shirley  v.  Thompson,  123 

Ind.  81,  13  N.  E.  127;  Fleece  V.  Jones,  Ind.  454,  24  N.  E.  253. 

71    Ind'.    340.     In   such   case   the    fact        "Sheldon  v.   Wright,  7   Barb.    (X. 

that  the  administrator  had  no  notice  Y.)  39. 


488  INDIANA  PROBATE  LAW.  §  3O4 

against  him  in  his  final  report,  although  they  may  not  be  in- 
cluded in  his  account.** 

Tlie  statute  contemplates  the  final  settlement  of  an  estate  at  the 
end  of  a  year  and  if  this  cannot  be  done  at  that  time  an  account 
must  be  filed  showing  what  has  been  done  and  why  a  final  settle- 
ment could  not  be  made  at  that  time. 

§  304.  Notice  of  a  hearing  on  the  account. — Whether  such 
account,  when  filed,  is  in  current  or  in  final  settlement,  notice  of 
the  time  fixed  for  the  hearing  thereon  may  be  given,  with  this 
exception,  that  in  cases  of  current  settlements,  such  notice  is  at 
the  discretion  of  the  executor  or  administrator,  while  in  cases 
of  final  settlement,  such  notice  is  mandatory.  The  statute  is  as 
follows:  "Upon  tlie  filing  of  such  account,  the  clerk  siiall  fix  a 
day,  in  term  time  by  indorsement  on  the  account,  not  less  than 
three  weeks  from  the  date  of  filing,  when  the  account  will  be 
heard;  and  if  the  account  is  for  final  settlement,  or  if  partial, 
only,  yet  in  the  opinion  of  the  executor  or  administrator  is  of 
sufficient  importance  to  require  final  action  thereon,  said  execu- 
tor or  administrator  shall  give  notice  to  all  persons  interested  in 
said  estate  to  appear  in  court  on  such  day  and  show  cause  why 
such  account  should  not  be  approved,  which  notice  shall  be  given 
by  publication  in  some  weekly  newspaper  of  general  circulation, 
published  in  the  county  in  which  the  administration  is  pending, 
and  by  posting  at  the  court-house  door  for  two  consecutive  weeks. 
If  the  account  is  filed  for  final  settlement,  the  notice  shall  also  re- 
quire the  heirs  of  the  decedent,  and  all  others  interested,  to  appear 
and  make  proof  of  their  heirship  to  any  part  of  said  estate :  Pro- 
vided, however.  That  when  an  account  is  filed,  and  no  notice  of 
the  hearing  of  the  same  is  required,  it  shall  not  be  necessary  for 
the  clerk  to  fix  a  day  in  the  future  for  the  hearing  thereof,  but 
the  same  may  be  acted  on  at  any  time  by  the  court."" 

"  McKnight  V.  Walsh.  24  X.  J.  Eq.  «  Burns'  R.  S.  1908.  §  2912.  The  no- 

498;   Hurlburt  v.  Wheeler,  40  X.   H.  tice  provided  for  in  this  section  may 

7Z\  Gardner  v.  Gardner,  7  Paige  (N.  be  signed  by  the  clerk  of  the  court, 

Y.)    112;  Norris's  Appeal,  71  Pa.  St.  and  is  not  insufficient  because  directed 

106.  to  the  heirs,  creditors  and  legatees  of 


§    305  ACCOUNTING    AND    SETTLEMENT.  489 

If  the  report  filed  is  a  final  account,  and  the  time  is  fixed  for 
hearing  thereon  by  the  judge,  instead  of  by  the  clerk,  as  required 
by  this  statute,  it  will  not  be  cause  sufficient  to  set  aside  a  final 

settlement.^''  .     . 

Where  notice  is  given,  although  it  may  be  defective,  the  juris- 
diction of  the  court  to  hear  the  report  is  not  ousted." 

But  to  make  a  final  settlement  binding  upon  interested  parties, 
it  would  seem  that,  in  addition  to  the  above  notice,  they  should 
have  been  personally  summoned  to  attend  the  hearing.^' 

A  notice,  of  a  current  account,  to  "all  persons  interested  m 
the  estate,"' is  sufficient,  but  they  must  have  notice  if  an  adjudi- 
cation is  wished  upon  any  matter  in  such  report.^«  The  admin- 
istrator can  take  no  advantage  of  his  failure  to  give  notice.^" 

§  305  The  hearing  and  order.— If  a  time  has  been  fixed  in 
accordance  with  preceding  section  for  the  hearing  on  an  account 
in  current  settlement,  or  if  such  account  is  a  final  one,  the  court 
shall  proceed  upon  the  day  fixed  to  hear  said  account;  the  exec- 
utor or  administrator  shall  attend  the  hearing  and  submit,  if  re- 
quired, to  an  examination,  under  oath,  touching  the  account  and 
the  expenses  of  administration.  Any  person  interested  m  the 
distribution  of  the  assets  may  appear  and  contest  the  correctness 
of  the  account,  and  witnesses  may  be  compelled  to  attend  and 
testify  touching  any  matters  material  thereto;  if  the  court  find 
that  the  account  is  erroneous,  it  shall  order  an  immediate  amend- 
ment or  new  account,  as  the  case  may  require.     If  the  same  be 

the  estate,  instead  of  to  all  persons  in-  report.     Jones  v.  Jones,  115  Ind.  504, 

terested.    Roberts  v.  Spencer,  112  Ind.  18  N.  E.  20.              nr  t  ^    ^04   19  N 

81    13  X.  E.  127.  "  Jo"^^  ''•  J°"^''  ^^^                ' 

-WiUiam's    V.    Williams,    125    Ind.  E.  20. 

156.  25  N.  E.   176.     If  the  time  for  -  Crum  v.  Meeks,  128  Ind.  360,  -/ 

hearine  is  fixed  by  the  court,  instead  N.  E.  722.                         1,0  t  ^   si    n 

of  be"L  fixed  by  the  clerk,  it  will  be  -  Roberts  v.  Spencer   112  Ind.  81    13 

ot  bemg  nxeu  uy           .,     '         ^  ..,  >-  -p   107  •  Barnett  v.  Vanmeter,  7  Ind. 

no  cause  for  setting  aside  final  settle-  V  E-  j^^  '  ^^™^" 

ment.  A  defective  notice  will  not  oust  App-  45  33  N^  E.  666. 

^e  court  of  jurisdiction  to  hear  the  «  Dav,s  v.  Davis,  6  Ala.  611. 


490  INDIANA  PROBATE  LAW.  §  305 

found  correct,  the  court  shall  approve  the  same  and  fix  the 
amount  to  be  allowed  for  expenses  of  administration  to  date." 

Under  this  section  of  the  statute,  exceptions  to  a  current  ac- 
count should  not  be  entertained  for  any  other  purpose  than  to 
test  the  correctness  of  the  report.*" 

Upon  exceptions  filed  to  current  reports  issues  may  be  formed, 
evidence  heard  and  the  court  may  make  a  special  finding  of  facts 
and  state  conclusions  of  law  thereon.  The  court  says  that 
''while  the  proceedings  to  test  the  correctness  of  an  administra- 
tor's report  is  not,  in  a  broad  and  technical  sense,  a  civil  action, 
yet  tiie  report  and  the  exceptions  form  both  issues  of  fact  and 
of  law,  for  the  court  to  determine,  and  we  are  unable  to  see  any 
valid  objections  to  the  court  making  a  si>ecial  finding  of  facts 
and  stating  its  conclusions  of  law  thereon."" 

The  report  filed  by  an  executor  or  administrator  stands  as  a 
complaint  in  the  probate  court,  and  the  exceptions  filed  thereto 
constitute  an  answer  and  the  cause  is  to  be  heard  upon  the  issue 
they  make.'* 

When  an  executor  or  administrator  files  a  report,  the  court 

"  Burns'  R.  S.  1908,  §  2913.  An  or-  (kr  tlie  provisions  of  the  statute,  the 
der.  made  on  the  iicaring  of  a  partial  court  has  the  power  to  make  correc- 
account,  for  distribution,  or  for  an  al-  tions  in  the  record,  and  to  cause  mis- 
lowance  of  a  credit  for  payment,  to  takes  in  accounts  current  to  be  recti- 
an  heir  or  legatee,  is  not  binding  upon  ficd.  Until  the  final  settlement  is 
the  other  heirs  or  legatees,  so  far  as  made,  accounts  and  reports  may  be  re- 
it  determines  the  right  of  any  one  to  viewed  and  errors  corrected.  Harrell 
the  money  as  heir  or  legatee,  when  v.  Seal,  121  Ind.  193,  22  X.  E.  983. 
the  only  notice  of  the  hearing  is  by  Such  an  order  may  be  set  aside  on  the 
publication  and  posting.  Glessner  v.  application  of  one  appointed  adminis- 
Clark,  140  Ind.  427,  39  N.  E.  544.  A  irator  as  successor  to  the  administra- 
claimant  not  having  appeared,  and  not  tor  on  the  hearing  of  whose  account 
having  been  summoned  to  appear  at  the  order  was  granted.  Glessner  v. 
the  final  settlement,  is  not  concluded  Clark.  140  Ind.  427,  39  X.  E.  544. 
by  the  judment.  Shirley  v.  Thomp-  '"■  Swift  v.  Harley,  20  Ind.  App.  614, 
son,  123  Ind.  454,  24  X.  E.  253.  Ex-  49  X.  E.  1069;  Taylor  v.  McGrew,  29 
ceptions  to  an  account  current  are  Ind.  App.  324,  64  X.  E.  651. 
proper  under  this  section,  only  for  the  **  Spray  v.  Bertram,  165  Ind.  13,  74 
purpose  of  testing  its  correctness.  X.  E.  502;  Johnson  v.  Central  Trust 
Christie  v.  Wade,  87  Ind.  294.  Co.,  159  Ind.  605,  65  X.  E.  1028. 

*=  Christie  v.  Wade,  87  Ind.  294.  Un- 


§    306  ACCOUNTING    AND    SETTLEMENT.  49 1 

not  only  has  statutory  authority  but  inherent  power,  to  approve 
such  report,  or  to  reject  it  and  order  a  new  one  filed. ^^ 

If  notice  of  a  hearing  upon  a  current  report  has  been  given  as 
required  in  the  preceding  section,  the  adjudication  of  the  court 
upon  the  account  as  to  all  matters  necessarily  involved  therein  is 
binding  and  conclusive.**^ 

§  306.    Accounts  by  joint  executors  and  administrators. — 

Co-executors  and  co-administrators  take  the  same  interest  and 
estate  in  the  property  of  their  decedent.  Their  right  is  joint  and 
entire  and  incapable  of  being  severed.  They  are  considered  in 
law  as  one  person,  and  if  one  or  more  of  the  number  die  or  re- 
sign, or  be  removed,  the  estate  passes  to  and  vests  in  those  re- 
maining. The  act  of  one  is  deemed  to  be  the  act  of  all  even 
though  they  administer  on  different  parts  of  the  estate.*' 

Accounts  may  be  rendered  by  one  or  more  joint  executors  or 
administrators.  The  account  may  be  a  joint  account  or  it  may 
be  the  separate  account  of  each.  As  each  one  is  entitled  to  re- 
ceive and  keep  the  assets  of  the  estate,  he  is  entitled  to  file  his 
separate  account  to  show  for  what  part  of  the  estate  he  is  re- 
sponsible.** 

Where,  however,  a  joint  account  is  filed,  all  will  be  liable  as 

*^  Swift  V.  Harley,  20  Ind.  App.  614,  l)ind  a  party  interested;  hence  a  dis- 

49  N.  E.  1069.  tinction   is   sometimes   taken  between 

'"Burns'  R.  S.  1908,  §  2926.  "It  is  the  rendering  of  an  account  and  its 
the  province  of  the  probate  court  to  settlement,  the  former  being  the  act  of 
pass  upon  the  account,  determining  tlie  executor  or  administrator  consti- 
judicially  what  assets  the  executor  tuting  the  basis  of  the  settlement,  the 
or  administrator  is  chargeable  with,  latter  the  act  of  the  court,  judicially 
and  to  what  credits  he  is  entitled;  and  determining — settling — the  questions 
it  results  from  this  authority  that  the  involved."  Woerner  Am.  Law.  Ad- 
decision  of  any  question  upon  which  min.,  §  502. 

there  was  an  issue  between  the  par-  *' Schouler   Exrs.,   §  400:    Redf.   on 

ties  becomes  an  adjudication  thereof.  Wills,  §  222;  Barry  v.  Lambert,  98  N. 

which  cannot  be  impeached,  except  in  Y.  300,  50  Am.  Rep.  QT . 

a  direct  proceeding  by  appeal  or  for  *'  Barclay  v.   Morrison,   16  S.  &  R. 

fraud.     It  is  apparent  that  the  mere  (Pa.)    129;  Bellerjeau  v.  Kotts,  4  N. 

rendering  of  the  account,  even  if  ap-  J.  L.  359;  Heyer's  Appeal,  34  Pa.  St. 

proved  by  the  court  in  an  ex   parte  183. 
proceeding,   can    have   no   validity   to 


492  INDIANA  PROBATE  LAW,  §  307 

shown  by  the  account,  unless  the  presumption  raised  thereby  is 
rebutted.'*®  And  some  of  the  cases  go  so  far  as  to  hold  that 
filing  a  joint  account  is  more  than  prima  facie  evidence  of  a 
joint  liability;  that  it  is  conclusive,  and  the  fact  that  a  joint  ac- 
count is  filed,  of  itself  makes  the  executors  or  administrators 
joining  therein  jointly  liable.^" 

In  this  state,  when  an  account  is  rendered  by  one  or  more  joint 
executors  or  administrators,  the  court  may,  in  its  discretion,  al- 
low the  same  to  be  verified  by  any  one  of  them.'^^ 

Accounts  which  are  joint  in  form,  if  really  filed  by  only  one 
executor,  will  not  bind  his  co-executor.^* 

When  one  of  two  executors  presents  his  account  for  settle- 
ment his  associate  may  contest  it." 

Where  they  keep  separate  accounts,  each  charging  himself 
with  so  much  of  the  estate  only  as  comes  into  his  own  hands, 
neither  is  chargeable  with  the  assets  in  the  hands  of  the  other, 
and  either  of  them  is  entitled  to  his  discharge  by  showing  a 
proper  administration  of  all  tlie  estate  that  came  into  his  own 
hands." 

§  307.  Filing  further  accounts. — With  the  exception  of  the 
first  account  the  statute  fixes  no  time  within  which  an  admin- 
istrator or  executor  shall  make  report.  If  the  estate  is  not 
closed  at  the  end  of  the  year  with  the  filing  of  the  first  account 
provided  for,  any  further  accounting  is  at  the  discretion  of  the 
court,  except  that  unless  good  cause  is  shown,  a  final  settlement 
must  be  made  at  the  end  of  six  months  after  any  "last"  account 
shall  have  been  made.     The  statute  reads : 

"After  the  expiration  of  one  year  from  giving  notice  of  ap- 
pointment, the  court  may,  at  any  time  in  its  discretion,  order  a 

'"Suydam  v.  Bastedo,  40  X.  J.  Eq.  Laroe  v.  Douglass,  13  X.  J.  Eq.  308; 

433,  2  Atl.  808;  Conner  v.  Mcllvaine,  Young's  Appeal,  99  Pa.  St.  74. 

4  Del.  Ch.  30 ;  Glacius  v.  Fogel,  88  N.  "  Burns'  R.  S.  1908,  §  2910. 

Y.  434.    Each  executor  or  administra-  '"  English  v.  Xewell,  42  X.  J.  Eq.  76, 

tor   is   liable   only   for  the   assets   re-  6  Atl.  505. 

ceived    by    him.     Call    v.     Ewing,    1  "Mead  v.  Willoughby,  4  Dem.   (X. 

Blackf.  (Ind.)  301.  Y.)  364. 

'"Haage's   Appeal,   17   Pa.   St.   181;  "Davis's   Appeal,   23   Pa.    St.   206; 

Bellerjeau  v.  Kotts,  4  X.  J.  L.  359. 


§    307  ACCOUNTING    AND    SETTLEMENT,  493 

further  accounting  by  the  executor  or  administrator,  and  if  it 
appear  to  the  court  that  the  settlement  of  the  estate  is  being  un- 
reasonably and  unnecessarily  delayed,  the  court  may  enter  a 
peremptory  order  for  the  final  settlement,  and  enforce  compli- 
ance with  the  order  by  the  attachment  of  the  person  of  the  exec- 
utor or  administrator,  and  punishment  for  contempt :  Provided, 
however,  it  shall  be  the  duty  of  the  executor  or  administrator 
to  make  final  settlement  of  the  estate  at  the  expiration  of  six 
months  from  the  date  of  his  last  report,  unless  otherwise  ordered 
by  the  court  for  good  cause  shown."^° 

The  current  account  filed  by  an  executor  or  administrator  is 
prima  facie  evidence  of  the  amount  due  the  estate  remaining  in 
his  hands  at  the  time  his  report  is  filed. ^^ 

The  same  rules  as  to  notice  and  hearing  apply  to  accounts 
filed  under  this  statute  as  are  required  in  case  of  other  reports. 
The  statute  says : 

'Tf  an  account  be  filed  after  the  expiration  of  the  year  afore- 
said, the  day  for  hearing  the  same  shall  be  fixed,  and  the  same 
rules  as  to  giving  notice  of  the  hearing  shall  be  followed  as  here- 
inbefore provided  for  notice  of  accounts  filed  at  the  end  of  the 
year."^^ 

It  is  the  duty  of  an  executor  or  administrator,  when  ordered 
so  to  do,  to  prepare  and  file  his  further  account  in  the  court  in 
which  the  administration  is  pending,  and  his  neglect  to  file  such 
report  for  the  space  of  nearly  a  year  after  the  time  fixed  by  the 
court  for  that  purpose,  will  justify  the  court  in  removing  him.^^ 

An  administrator  is  not  excused  for  his  failure  to  file  a  further 
account  by  the  fact  that  a  previous  report  filed  by  him  has  never 
been  acted  upon.^^ 

Where  assets  have  come  to  the  hands  of  an  executor  or  ad- 
ministrator after  he  has  filed  his  partial  report,  he  is  bound  to 
include  such  assets  in  his  next  report.®"  But  a  further  account- 
ing will  not  necessarily  be  ordered  merely  because  additional 

"  Burns'  R.  S.  1908,  §  2916.  ''  Evans  v.  Buchanan,  15  Ind.  438. 

"^  Lane  v.  State,  27  Ind.  108.  =•  Ex  parte  Pearce,  44  Ark.  509. 

"  Burns'  R.  S.  1908,  §  2917.  «"  Witman's  Appeal,  28  Pa.  St.  376; 


494 


INDIANA    PROBATE    LAW.  §    30S 


assets  have  come  to  his  hands.  The  accounting  may  be  post- 
poned, in  the  discretion  of  the  court,  until  the  final  accounting."^ 

The  proper  number  of  each  report  should  be  stated  on  its 
face,  and  a  final  report  should  distinctly  purport  to  be  such.®- 
But  the  mere  fact  that  an  account,  which  on  its  face  appears  to 
be  final,  is  not  so  styled  in  the  caption  will  not  prevent  its  being 
so  considered.''"' 

Every  item  of  receipt  and  expenditure  should  be  distinctly  en- 
tered in  such  reports."^ 

^  308.  Effect  of  approval  of  current  report. — The  order  or 
action  of  a  court  in  allowing  or  passing  upon  a  current  report 
made  by  an  administrator  or  executor  in  partial  settlement  of 
his  decedent's  estate,  is  considered  as  merely  an  interlocutory 
order,  and  as  such  it  was  held  that,  in  the  absence  of  some  stat- 
ute authorizing  an  appeal,  no  api^^al  would  lie  in  such  case.'"' 
The  statute  now,  it  will  be  obsened,  authorizes  an  appeal.  The 
language  is,  ''and  upon  the  finding  of  the  court  upon  any  report 
showing  the  receipts  and  expenditures  by  the  executor  or  admin- 
istrator, an  appeal  will  lie  to  the  Supreme  Court,  as  in  final 
judgment."*" 

And  such  partial  or  current  accounts  filed  by  an  executor  or 
administrator,  from  time  to  time,  until  final  settlement,  are  not 
conclusive,  either  for  or  against  him,  and  while  they  are  to  be 
regarded  as  prima  facie  correct,  yet  frauds  or  mistakes  in  them 
may  be  corrected.  The  action  of  the  court  in  approving  such 
accounts  is  an  ex  parte  proceeding,  and  does  not  preclude  a  fur- 
Shaffer's  Appeal,  46  Pa.  St.  131.  "'  Burns*  R.  S.  1908,  §  2906.    An  ad- 

"  Wetmore  V.  Wetmore,  3  Dem.  (N.  niinistrator  cannot  make  a  legal  set- 
Y.)  414.  tlement   until   the   expiration   of   one 

""-  Bennett  v.  Hanifin,  87  111.  31.  year  from  the  date  at  which  his  let- 

•^  Stevenson  v.  Phillips,  21  X.  J.  L.  ters  were  issued,  and  the  giving  of 
70.  notice  thereof.  An  administrator  can- 

*^  Stone  V.  Stillwell,  23  Ark.  444;  not  defeat  a  claimant's  right  to  file 
Hutchinson's  Appeal,  34  Conn.  300;  his  claim  within  the  year  by  making 
In  re  Jones,  1  Redf.  (N.  Y.)  263.  a    premature    settlement.     Shirley    v. 

•«  Goodwin  v.  Goodwin,  48  Ind.  584 ;     Thompson,  123  Ind.  454,  24  N.  E.  253. 
Wood  v.  Wood,  51  Ind.  141 ;  Thiebaud 
v.  Dufour,  57  Ind.  598. 


§    308  ACCOUNTING    AND    SETTLEMENT.  495 

ther  investigation  of  the  subject.  All  such  ex  parte  orders  and 
partial  reports  are  considered  as  interlocutory  and  are  subject 
to  revision  at  any  time  before  final  settlement.  They,  however, 
are  not  subject  to  a  collateral  attack;  and  if  attacked  it  must  be 
in  a  direct  proceeding  brought  in  the  proper  court  for  that  pur- 
pose.'^^ 

Exceptions  to  a  current  report  of  an  executor  or  administra- 
tor, taken  by  "any  person  interested  in  the  distribution  of  the 
assets"  of  the  estate,  are  proper  only  to  test  the  correctness  of 
such  report,  and  for  no  other  purpose.  If  the  report  is  incorrect, 
it  should  be  amended,  or  a  new  one  filed;  but  if  it  is  correct  in 
so  far  as  it  goes,  and  no  additions  are  required,  it  should  be  ap- 
proved, and  leave  all  collateral  questions  to  be  settled  by  inde- 
pendent proceedings,  and  not  by  exceptions  to  the  report.*'® 

In  this  state  it  is  provided  by  statute  that  in  every  settlement 
of  an  account  rendered  by  an  executor  or  administrator,  all  his 
former  accounts  may  be  so  far  opened  as  to  correct  any  error 
or  mistake  therein ;  excepting  that  any  matter  in  dispute  between 
two  parties,  which  had  been  previously  heard  and  determined 
by  the  court  shall  not  be  brought  again  in  question  by  either  of 

"Goodwin  v.  Goodwin,  48- Ind.  584;  ered.     Goodbub  v.  Hornung,  127  Ind. 

Allen  V.  Clark,  2  Blackf.  (Ind.)  343;  181,  26  N.  E.  770. 

State,  ex  rel.,  v.  Brutch.  12  Ind.  381 ;  "«  Christie  v.  Wade,  87  Ind.  294.    An 

Candy    v.     Hanmore,    76    Ind.     125 ;  order,  made  on  the  hearing  of  a  par- 

Fraim  v.  Millison,  59  Ind.  123;  State,  tial   account,   for   distribution,  or   for 

ex  rel.,  v.  Wilson,  51  Ind.  96;  Sherry  an  allowance  of  a  credit  for  payment, 

V.  Sansberry,  3  Ind.  320;  Glidewell  v.  to  an  heir  or  legatee,  is  not  binding 

Snyder,  72  Ind.  528;  Collins  v.  Tilton,  upon  the  other  heirs  or  legatees,   so 

58  Ind.  374;  Thiebaud  v.  Dufour,  57  far  as  it  determines  the  right  of  any 

Ind.  598.  one  to  the  money  as  heir  or  legatee. 

Until   the   final   settlement  is  made  when  the  only  notice  of  a  hearing  is 

accounts  and  reports  may  be  reviewed  by  publication  and  posting.     Glessner 

and  errors  corrected.    Harrell  v.  Seal,  v.  Clark,  140  Ind.  427,  39  N.  E.  544. 

121  Ind.  193,  22  N.  E.  983.     In  most  Such  an  order  may  be  set  aside  on  the 

matters  relating  to  the  filing,  exami-  application  of  one  appointed  adminis- 

nation  and  approval  or  disapproval  of  trator  as  successor  to  the  administra- 

reports  in  probate  matters,  strict  for-  tor  on  the  hearing  of  whose  account 

niality     is     not     required ;     substance  the  order  was  granted, 
rather   than    form   should  be   consid- 


496  INDIANA  PROBATE  LAW.  §  308 

the  same  parties,  without  notice  to  the  opposite  party  and  by 
leave  of  the  court/® 

The  approval  of  the  partial  report  of  an  executor  or  admin- 
istrator, and  the  allowance  of  a  credit  and  voucher  presented 
by  him,  while  prima  facie  correct  is  not  conclusive,  when  made 
in  the  due  course  of  administration  and  without  adversary  pro- 
ceedings.^" In  one  case  it  is  said  by  the  court,  "the  various  re- 
ports of  an  executor  or  administrator,  in  the  course  of  admin- 
istration, referring  to  each  other  as  they  do,  may,  in  some  sense, 
be  regarded  as  one  report;  and  we  think  that  on  a  final  settle- 
ment, while  they  should  be  treated  as  prima  facie  correct,  they 
may  still  be  so  far  opened  up  as  to  correct  any  frauds  or  mis- 
takes therein."'^ 

Under  this  statute,  as  well  as  by  force  of  the  general  rule, 
errors  on  a  partial  account  may  be  corrected  in  a  subsequent  ac- 
count.^" 

And  it  is  not  necessary  to  such  correction  that  exceptions 
should  have  been  filed  to  the  report.''' 

Where  the  proper  notice  has  been  given  for  a  hearing  upon 
an  account  in  partial  settlement,  and  the  proper  parties  are  before 
the  court  having  exclusive  jurisdiction  of  such  matter,  and  either 

"Burns'  R.  S.  1908,  §  2926.     "The  v.  Tilton,  58  Ind.  374;  Harrell  v.  Seal, 

current  or  partial  reports  of  an  exec-  121  Ind.  193,  22  N.  E.  983.     "We  can- 

utor  or  administrator  are  generally  ex  not  agree  with  counsel  in  this  conten- 

parte  in  their  character,  and  for  this  tion,  but,  on  the  contrary,  must  hold 

reason  the  allowance  by  the  courts  of  that  upon  a  final  accounting,  all  previ- 

such   reports   is   not   conclusive   upon  ous  or  current  reports  are  subject  to 

the  heirs  or  devisees  of  the  decedent."  review   and    correction."      Duckworth 

Fraim  v.  Millison,  59  Ind.  123 ;  Good-  v.  Kirby,  10  Ind.  App.  139,  Z7  N.  E. 

win  V.  Goodwin,  48  Ind.  584.  729. 

^'' State  V.  Wilson,.  51  Ind.  96;  State  "Jenison     v.     Hapgood,     7     Pick. 

V.  Brutch,  12  Ind.  381.     If  the  e.xec-  (Mass.)  1,  19  Am.  Dec.  258;  Sipperly 

utor  reports  that  he  has  paid  a  legacy  v.    Baucus,   24   N.   Y.   46;   Arnold   v. 

and  is  given  credit  for  it,  the  legatee  Mower,    49    Me.    561 ;     Brandon    v. 

may  show  that  such  report  is  untrue  Brown,  106  111.  519;  Scott  v.  Fox,  14 

and  have  the  same  corrected.     Har-  Md.   388;   Adams  v.   Adams,   21   Vt. 

rell  v.  Seal,  121  Ind.  193,  22  N.  E.  983.  162;  Buchanan  v.  Grimes,  52  Miss.  82. 

■^Goodwin  v.  Goodwin,  48  Ind.. 584;  "Goodwin  v.  Goodwin,  48  Ind.  584. 
Fraim  v.  Millison,  59  Ind.  123 ;  Collins 


§    309  ACCOUNTING    AXD    SETTLEMENT.  .  49/ 

do,  or  have  the  opportunity  to,  contest  the  correctness  and  va- 
Hdity  of  such  account,  the  judgment  and  order  of  the  court  ap-  ^ 
proving  and  passing  the  account  is  as  conclusive  as  if  rendered 
on  a  final  settlement,  and  is  a  bar,  as  to  the  matters  determined 
by  such  judgment,  to  all  inquiry  at  the  final  settlement.'^* 

As  a  general  rule,  however,  it  is  not  customary  to  give  any 
notice  of  a  hearing  upon  a  current  report  and  hence,  the  action 
of  the  court  thereon  concludes  no  one,  and  such  report  stands 
only  as  prima  facie  evidence  of  the  correctness  of  such  account 
and  may  be  contradicted  upon  the  final  settlement. 

§  309.  Vouchers  must  be  filed. — In  rendering  an  account, 
every  executor  or  administrator  shall  produce  vouchers  for  all 
debts,  claims  and  legacies  paid,  and  for  all  charges  and  expenses, 
which  vouchers  shall  be  filed  and  preserved  in  said  court,  ex- 
cept that  on  the  settlement  of  an  account  the  executor  or  admin- 
istrator may  be  allowed  any  item  of  expenditure  not  exceeding 
five  dollars,  for  which  no  voucher  is  produced,  if  such  item  be 
supported  by  his  own  oath  positively  to  the  fact  of  payment, 
specifying  when  and  to  whom  such  payment  was  made  and  if 
such  oath  be  uncontradicted;  but  such  items  allowed  shall  not 
in  all  exceed  one  hundred  dollars  for  payments  in  behalf  of  any 
one  estate. ^^ 

Where  a  court  has  ordered  a  guardian  to  expend  certain 
moneys  on  behalf  of  his  ward,  and  the  money  of  the  ward  is 
yet  in  the  hands  of  the  administrator  of  the  deceased  parent  or 
ancestor  of  such  ward  as  a  part  of  such  decedent's  estate  unad- 
ministered,  the  expenditure  of  the  money  by  the  administrator 
on  behalf  of  such  minor  or  ward,  under  direction  of  his  guard- 
ian, is  a  proper  one,  and  such  administrator  is  entitled  to  credit 
in  his  report  for  any  reasonable  sum  of  money  so  expended. ^^ 

Where  it  appears  that  an  executor  or  administrator  has  acted 
in  conformity  to  the  statute,  it  will  be  presumed,  until  the  con- 
trary is  shown,  that  he  did  his  duty;  and  where  the  heirs  object 
to  a  credit  claimed  by  the  administrator  for  a  debt  of  the  estate 

"  Woerner  Am.  Law  Admin.,  §  504.         ™  Powell   v.    North,  3   Ind.  392,  56 
•^  Burns'  R.  S.  1908,  §  2921.  Am.  Dec.  513n. 

32— Pro.  Law. 


498  INDIANA  PROBATE  LAW.  §  3IO 

paid  by  him.  the  claim  having  been  verified  and  properly  filed,  and 
its  payment  receipted  for,  the  bnrden  is  upon  them  to  show  that 
such  claim  was  improperly  and  fraudulently  allowed  and  paid.'^ 

The  administrator  or  executor  is  a  competent  witness  to  small 
charges,  but  large  items  must  be  verified  by  vouchers  or  ex- 
traneous proof.^® 

He  is  entitled  to  credit  for  all  proper  payments  made  by  him 
on  behalf  of  the  estate,  and  if  any  such  payment  has  been  made 
out  of  his  own  funds  it  should  be  allowed  him  in  his  account.^" 

A  payment,  in  all  other  respects  a  proper  one  to  be  made, 
should  not  be  disallowed  because  paid  prematurely/" 

Improper  or  dishonest  payments  should  not  be  allowed ;  but 
payments  made  in  good  faith  under  an  invalid  appointment, 
which  was  afterward  revoked,  should  be  credited  to  the  person 
making  them.^^ 

The  creditor's  receipt  is  sufficient  to  entitle  an  executor  or  ad- 
ministrator to  a  credit  for  the  payment. **- 

An  item  rejected  in  one  account  may  afterward  be  allowed.*' 
And  a  voucher  filed  with  a  report  may  be  impeached  by  showing 
that  it  does  not  represent  a  bona  fide  payment.*** 

§  310.  When  the  court  may  order  final  settlement. — If 
upon  such  accounting  and  approval  it  shall  appear  to  the  court 
that  the  estate  is  solvent,  and  that  there  are  claims  allowed 
against  the  estate  remaining  unpaid,  the  court  shall  order  the 
moneys  remaining  in  the  hands  of  the  executor  or  administrator 
to  be  applied  to  the  payment  of  expenses  of  administration  and 
of  such  claims.  If  the  moneys  on  hand  be  sufficient  therefor, 
and  there  remain  no  claims  pending  for  allowance,  and  no  debts 

"Stout  V.  Morgan,  6  Ind.  369.  V.)  339;  Burke  v.  Coolidge,  35  Ark. 

"  Succession    of    Foulkes,     12    La.  180. 

Ann.  537 ;  Romig's  Appeal,  84  Pa.  St.  "  Henderson    v.    Simmons,   33   Ala. 

235 ;  Hall  v.  Hall,  1  Mass.  101 ;  Dav-  291.  70  Am.  Dec.  590. 

enport  v.  Lawrence,  19  Te.x.  317.  *^  Collins    v.    Tilton.    58    Ind.    374; 

™  Woods   V.   Ridley,  27   Miss.    119;  Walls  v.  Walker,  37  Cal.  424,  99  Am. 

Watson  V.  McClanahan,  13  Ala.  57.  Dec.  290n. 

^Johnson  v.  Corbett.  11  Paige  (X.  ^*  Harrell  v.    Seal.   121   Ind.   193,  22 

Y.)  265.  N.  E.  983;  Butler's  Estate,  16  N.  Y. 

""  Bloomer  v.  Bloomer,  2  Bradf.  (X.  S.  103. 


§    3IO  ACCOUNTING    AND    SETTLEMENT.  499 

due  the  estate  remaining  for  collection,  the  court  shall  enter  an 
order  for  the  final  settlement  of  the  estate,  payment  of  claims  un- 
paid, and  distribution  of  the  residue  to  the  heirs  and  legatees  of 
the  decedent.  If,  in  such  case,  the  moneys  on  hand  be  not  suf- 
ficient to  pay  the  expenses  of  administration  and  claims  allowed 
in  full,  and  the  estate  be  solvent,  and  there  remain,  in  the  hands 
of  the  executor  or  administrator,  property  or  choses  in  action 
belonging  to  the  estates  and  not  converted  into  money,  the 
moneys  on  hand  shall,  under  the  order  of  the  court,  be  applied 
pro  rata  on  the  expenses  and  claims,  according  to  the  order  of 
classes  hereinbefore  prescribed,  and  the  estate  shall  be  continued 
for  further  settlement,  unless  the  amount  necessary  to  discharge 
the  liabilities  of  the  estate  be  advanced  by  the  heirs  or  legatees 
of  the  estate.*'' 

In  the  interest  of  a  prompt  settlement  of  the  estates  of  dece- 
dents it  is  essential  that  power  should  rest  in  the  probate  courts 
to  compel  final  settlement  of  such  estates;  and  while  such  power 
exists  in  our  courts,  yet  no  final  settlement  can  be  made  until  the 
estate  has  been  fully  administered,  and  it  would  be  an  abuse  of 
the  power  of  the  court  to  require  an  executor  or  administrator 
to  make  final  settlement  before  he  has  had  time  to  collect  and  re- 
duce the  assets  of  the  estate  to  money  and  to  pay  and  discharge 
its  debts  and  liabilities.*"  But  even  where  the  executor  or  admin- 
istrator has  collected  the  assets  of  the  estate  and  has  converted 
them  into  money,  no  valid  settlement  can  be  made  before  the 
expiration  of  one  year  from  the  issuing  of  letters  and  notice  of 
appointment."  After  the  expiration  of  the  time  for  filing  claims, 
however,  the  court  can  compel  a  final  settlement  of  the  estate  if 
no  special  circumstances  intervene  rendering  a  final  settlement 
impracticable  at  that  time.** 

"  Burns'  R.  S.  1908,  §  2914.  24  X.  E.  253 ;  Scott  v.  West,  63  Wis. 

^  Dufour  V.   Dufour,  28   Ind.  421 ;  529,  24  X.  W.  161 ;  25  N.  W.  18. 

Allison    V.    Abrams,    40    Miss.    747;  '*  Austin    v.    Jordan,    35    Ala.    642; 

Blanchard  v.  Williamson.  70  111.  647;  Branch  v.  Hanrick,  70  Tex.  731,  8  S. 

Crossan  v.  McCrary,  Zl  Iowa  684.  W.  539. 

^'  Shirley  v.  Thompson,  123  Ind.  454, 


500  IXDIAXA  PROBATE  LAW.  S  311 

§  311.  Allowance  of  compensation  for  services. — The  court 
may  make  allowance  to  such  executor  or  administrator,  when  he 
makes  his  report  in  partial  or  final  settlement,  for  his  services  as 
such  executor  or  administrator,  as  the  court  may  think  just  and 
reasonable,  including  expenses  in  the  discharge  of  his  duties, 
and  reasonable  attorney's  fees,  where  he  employs  an  attorney  in 
the  management  of  such  estate ;  but  in  no  case  shall  such  attor- 
ney's fees  be  included  in  the  allowance  to  such  executor  or  ad- 
ministrator for  his  personal  services.*" 

The  method  of  compensating  an  executor  or  administrator  for 
his  sei'vices  in  the  settlement  of  his  decedent's  estate  is  set  out  in 
these  statutes,  and  such  allowance,  by  way  of  compensation  for 
services,  expenses,  etc.,  is  made  by  the  court  without  notice  to  tlie 
heirs  or  legatees;  and  while  the  law  contemplates  that  an  execu- 
tor or  administrator  shall  receive  a  just  compensation  or  allow- 
ance, and  nothing  more,  for  his  serviced  in  the  settlement  of  his 
decedent's  estate,  yet  he  may  not,  however,  fix  the  value  of  his 
services,  or  determine  for  himself  the  amount  of  his  allowance. 
He  must  present  his  claim  for  his  services  in  the  form  prescribed 
by  the  statute  to  the  court  having  jurisdiction  of  his  decedent's 
estate,  and  upon  such  claim  the  court  may  allow  him  a  just  com- 
pensation for  such  services.""^ 

The  amount  of  such  allowance  is  left  to  the  discretion  of  the 
court  in  which  the  estate  is  pending,  and  the  exercise  of  such  dis- 
cretion will  not  be  disturbed  by  an  appeal  unless  it  clearly  appears 
from  the  record  that  the  sum  allowed  the  executor  or  adminis- 
trator is  wholly  insufficient.**^ 

"^  Burns'  R.  S.  1908,  §  2918.  In  mak-  lowance.     Watkins    v.     Romine,     106 

ing  allowances  to  executors  and  ad-  Ind.  378,  7  N.  E.  193. 

ministrators   for  services,   the  nature  ""Collins    v.    Tilton,    58    Ind.    374; 

of  such  service,  peculiar  qualification  Watkins  v.  Romine,  106  Ind.  378,  7  X. 

of    the    trustee    for    the    duties    per-  E.  193. 

formed,  and  difficulties  attending  the  "^  Ex  parte  Hodge,  6  Ind.  App.  487, 
settlement  of  the  estate,  should  be  33  N.  E.  980.  An  allowance  to  an  ex- 
considered.  Pollard  V.  Barkley,  117  ccutor  or  administrator  for  services 
Ind.  40,  17  N.  E.  294.  An  allowance  must  be  made  by  the  court.  If  such 
for  services  is  not  conclusive  unless  an  allowance  is  made  in  approving  an 
the  court  was  in  possession  of  all  the  account  current  it  is  not  binding  on 
facts  necessary  to  make  a  proper  al-  the  heirs,  and  may  be  contested  on  the 


§  311 


ACCOUNTING    AND    SETTLEMENT. 


501 


And  one  who  procures  an  exorbitant  allowance  for  services 
cannot  insist  that  the  order  making  such  allowance  is  conclusive, 
unless  he  shows  that  such  order  was  made  with  a  full  and  ac- 
curate knowledge  of  all  the  facts.^^ 

Traveling  expenses,  actually  incurred  by  an  executor  or  admin- 
istrator, may  be  allowed ;  but  he  should  not  be  allowed  more  for 
his  services  by  reason  of  the  fact  that  he  lived  at  a  distance  from 
the  place  where  his  duties  had  to  be  performed."^ 

All  expenses  for  which  an  allowance  is  asked  must  have  been 
incurred  in  a  bona  fide  prosecution  of  the  business  of  the  estate.'-** 
But  expenses  which  have  been  incurred  through  the  negligence 
of  the  executor  or  administrator  should  not  be  allowed."^ 

As  a  rule,  no  allowance  should  be  made  to  an  executor  or  ad- 
ministrator for  his  time,  trouble  and  expense  in  attending  the 
funeral  of  his  decedent."^ 


hearing  of  the  linal  scltlcment  report. 
Collins  V.  Tilton,  58  Ind.  374.  An  ex- 
ecutor or  administrator  residing  a 
long  distance  from  the  place  of  hold- 
ing court  cannot  claim  extra  compen- 
sation on  that  account.  Watkins  v. 
Romine,  106  Ind.  378,  7  N.  E.  193. 

"=  Watkins  v.  Romine,  106  Ind.  378, 
7  X.  E.  193;  Collins  v.  Tilton,  58  Ind. 
374.  Where  an  administrator  made  a 
report  and  asked  to  be  discharged 
from  his  administratorship,  and  made 
a  charge  for  services  in  the  sum  of 
two  hundred  and  fifty  dollars,  and  the 
court  discharged  such  administrator 
and  allowed  him  thirty  dollars  for 
services  rendered,  on  appeal  from  such 
allowance,  when  the  record  does  not 
show  to  the  contrary,  it  will  be  pre- 
sumed that  the  court  heard  evidence 
from  which  it  reached  the  conclusion 
that  the  services  were  worth  only 
thirty  dollars,  and  whether  or  not  the 
amount  allowed  was  such  as  he  was 
entitled  to  receive,  cannot  be  reached 
by  a  motion  to  modifj'.  The  amount 
to  be  allowed  an  administrator  for  his 


services  is  discretionary  with  the 
court,  and  the  appellate  court  will  not 
question  the  same,  unless  the  amount 
appears  wholly  insufficient.  Ex  parte 
Hodge,  6  Ind.  App.  487,  33  N.  E.  980. 

"'Dey  V.  Codman,  39  N.  J.  Eq.  258; 
Watkins  v.  Romine,  106  Ind.  378,  7  N. 
E.  193. 

"'  Haggard  v.  Mayfield,  5  Hayw.  (N. 
Car.)  121.  An  administrator  is  not 
entitled  to  interest  on  his  claim  for 
services,  nor  to  expenses  of  appeal, 
during  the  pendency  of  the  action  and 
appeal,  where  the  case  is  one  to  re- 
move the  administrator  and  compel  an 
accounting.  McClelland  v.  Bristow, 
9  Ind.  App.  543,  35  N.  E.  197. 

"'Brackett  v.  Tillotson,  4  N.  H.208; 
Robbins  v.  Wolcott,  27  Conn.  234; 
Jennison  v.  Hapgood,  10  Pick.  (Mass.) 
77.  Property  specially  bequeathed  is 
not  liable  for  expenses  of  administra- 
tion until  the  other  property  is  ex- 
hausted. Corya  v.  Corya,  119  Ind. 
593,  22  N.  E.  3. 

■*  Lund  V.  Lund,  41  N.  H.  355.  But 
see  Mann  v.  Lawrence,  3  Bradf.   (N. 


502 


INDIANA  PROBATE  LAW.  §  311 


If  a  person,  as  a  consideration  for  his  appointment  as  adminis- 
trator, agrees  to  ser\'e  the  estate  without  compensation,  such 
agreement  will  be  upheld  as  valid  and  binding  and  he  cannot 
afterward  claim  pay  for  such  services." 

Where  the  collection  of  the  assets  of  the  estate,  or  any  part  of 
them,  involves  peculiar  or  extraordinary  difficulty,  an  executor 
or  administrator  may  employ  an  agent  for  the  purpose  of  such 
collection,  and  the  court  should  allow  him  a  reasonable  compen- 
sation for  such  purpose."'  The  employment  of  agents  by  an 
executor  or  administrator  is  justifiable  when  the  service  to  be 
performed  requires  special  skill,  and  is  not  within  the  line  of  his 
ordinary  duty."**  The  services  of  brokers  and  auctioneers  are 
within  this  principle.^  Also  the  expenses  of  a  detective  employed 
to  establish  a  will."  It  would  also  seem  that  the  expense  of  em- 
ploying a  bailiff  where  a  good  business  man  would  employ  such 
an  agent  in  his  own  affairs  may  be  allowed.^ 

An  executor  or  administrator  is  not  personally  liable  for  costs 
in  a  suit  brought  by  him  to  recover  property  of  the  estate,  but 
if  by  error  judgment  is  so  rendered  against  him  instead  of 
against  the  estate  he  will  be  bound  for  the  payment  of  the  costs 
unless  the  proper  steps  are  taken  to  correct  such  judgment.*  The 
necessary  and  reasonable  expenses  of  an  executor  in  an  unsuc- 
cessful attempt,  made  by  him  in  good  faith,  to  resist  a  contest 
of  the  will  of  his  testator,  should  be  allowed  against  the  estate 
of  the  decedent  and  not  charged  personally  against  such  execu- 
tor.^ 

Y.)    424;    Wall's   Appeal,   38   Pa.    St.  *  State,  ex  rel.,  v.  Ritter,  20  Ind.  406. 

464.  One  who  has  no  interest  in  the  estate 

"Polk  V.  Johnson,  35  Ind.  App.  478,  as  creditor  or  otherwise  cannot  object 

65  N.  E.  536.  to  the  charges  made  by  the  adminis- 

"*  Kennedy's  Appeal,  4  Pa.  St.  149.  trator  on  account  of  services  rendered 

"^  Henderson   v.    Simmons,    33   Ala.  by  himself  and  his  counsel.  Schrichte 

291,  70  Am.  Dec.  590;  Dey  v.  Codman,  v.   Stites,   127  Ind.  472,  26  N.   E.  77, 

.39  N.  J.  Eq.  258.  1009. 

'  Pinckard  v.  Pinckard,  24  Ala.  250.  '  Bratney    v.    Curry,    33    Ind.    399 ; 

^  In  re  Lewis,  35  N.  J.  Eq.  99.  Perrine  v.  Applegate,  14  N.  J.  Eq.  531 ; 

'  McWhorter    v.    Benson,    1    Hopk.  Compton  v.  Barnes,  4  Gill.  (Md.)  55, 

(N.  Y.)  32;  Wilkinson  v.  Wilkinson,  45  Am.  Dec.  115;  Hazard  v.  Engs,  14 

.2  Sim.  &  Stu.  237.  R.    I.   5.     Costs   made   in   prosecuting 


§311  ACCOUNTING    AND    SETTLEMENT.  503 

But  neither  costs  nor  counsel  fees  will  be  allowed  unless  the 
executor  or  administrator  has  actually  paid  them.*' 

An  administrator  may  be  allowed  reasonable  compensation  for 
services  and  expenses  in  rectifying  mistakes  made  without  his 
fault.'  And  expenses  incurred  in  resisting  claims  honestly  be- 
lieved upon  reasonable  grounds  to  be  unjust,  should  be  allowed 
an  executor  or  administrator;  but  not  where  such  expense  was 
incurred  owing  to  the  negligence  or  misconduct  of  the  executor 
or  administrator.** 

In  many  of  the  states  the  rate  of  compensation  to  an  executor 
or  administrator  is  fixed  by  allowing  him  a  commission  upon  the 
gross  amount  of  property  which  comes  to  his  hand;  and  the  rate 
of  commission  is  often  fixed  by  statute.'' 

But  in  this  state,  as  has  been  shown,  the  rate  of  compensation, 
the  amount  to  be  allowed  an  executor  or  administrator  for 
services,  etc.,  lies  entirely  within  the  discretion  of  the  court. ^° 

To  justify  a  court  in  refusing  any  compensation  to  an  execu- 
tor or  administrator  on  the  ground  of  his  misconduct,  such  mis- 
conduct must  have  been  wilful,  or  his  negligence  so  gross  as  to 
result  in  actual  loss  to  the  estate." 

suits  in  favor  of,  or  defending  suits  Ammon's    Appeal,    31    Pa.    St.    311; 

against,  an  estate,  are  to  be  allowed  as  Blake  v.  Pegram,  109  Mass.  541 ;  Cam- 

e.xpenses  of  administration,  but  costs  eron  v.  Cameron,   15  Wis.   1,  82  Am. 

adjudged   in    favor   of   claimants   are  Dec.    652;    Effinger    v.    Richards,    35 

paid  in  the  same  order  as  their  claims  Miss.  540;  Wendell  v.  French,  19  N. 

are  paid.     Taylor  v.  Wright,  93  Ind.  H.  205 ;  Price's  Estate,  81  Pa.  St.  263. 

121.     Where    an    executor    is    also    a  '  Bendall  v.  Bendall,  24  Ala.  295,  60 

beneficiary  under  the  v^ill,  and  he  em-  Am.  Dec.  469;  Morgan  v.  Hannas,  49 

ploys     counsel     to    uphold     the    will  N.  Y.  667;   Currier's  Appeal,  79   Pa. 

against  a  contest,  it  is  proper  for  the  St.  230 ;  Barrell  v.  Joy,  16  Mass.  221 ; 

court  to  apportion  the  counsel  fees  as  Kee  v.  Kee,  2  Gratt.  (Va.)  116;  Smart 

between  executor  individually  and  of-  v.  Fisher,  7  Mo.  580;  First  Nat.  Bank 

ficially.     Roll  v.  Mason,  9  Ind.  App.  v.  Owen,  23  Iowa,  185;  EUig  v.  Na- 

651,  il  X.  E.  298.  glee,  9  Cal.  683;   Blauvelt  v.  Acker- 

"  Succession  of  Holbert,  3  La.  Ann.  man,  23  N.  J.  Eq.  495 ;  Hough  v.  Har- 

436;   Hoke  v.  Hoke,  12  W.  Va.  427;  vey,  71  111.  72;  Biscoe  v.  State,  23  Ark. 

Thacher  v.  Dunham,  5  Gray  (Mass.)  592. 

26 ;  Modawell  v.  Holmes,  40  Ala.  391.  '"  Collins  v.  Tilton,  58  Ind.  374. 

^  Bartlett  v.  Fitz,  59  N.  H.  502.  "  Walker  v.   Walker,  9   Wall.    (U. 

«  Pearson    v.    Darrington,    32    Ala.  S.)  743,  19  L.  ed.  814;  Grant  v.  Reese, 

227 ;  Holmes  v.  Holmes,  28  Vt.  765 ;  94  N.  Car.  720 ;  Eppinger  v.  Canepa, 


504  INDIANA  PROBATE  LAW.  §  311 

But  no  compensation  should  be  allowed  to  one  who  has  ren- 
dered no  serv'ice  to  the  estate/^  But  a  mere  mistake  in  judgment 
should  not  deprive  him  of  compensation." 

Nor  will  an  unfaithful  administration  deprive  an  executor  or 
administrator  of  his  right  to  compensation  for  his  services  so  far 
as  such  services  have  been  beneficial  to  the  estate.^*  Payment 
should  be  made  for  services  actually  rendered  without  anticipat- 
ing what  may  be  done  in  the  future.^''  And  where  co-executors 
or  co-administrators  have  been  willing  to  do,  or  have  done  what- 
ever was  required,  the  compensation  allowed  should  be  divided 
between  them/**  But  if  the  work  done  by  them  has  been  unequal, 
the  compensation  should  be  apportioned  according  to  work  and 
trouble. ^'^ 

The  court  is  not  bound  by  any  unbending  rule  in  making  an  al- 
lowance to  an  executor  or  administrator  as  compensation  for  his 
services  to  the  estate,  but  will  consider  the  nature  of  the  estate, 
the  difficulties  attending  the  recovery  of  the  assets,  and  the  settle- 
ment of  the  estate;  the  peculiar  qualifications  of  the  representa- 
tive, the  advantage  to  the  estate  from  such  qualifications,  and 
such  other  facts  and  circumstances  as  will  enable  it  to  do  justice 
as  between  the  estate  and  such  representative/® 

One  who  has  no  interest  in  the  estate  has  no  right  to  object  to 
the  charges  made  by  an  administrator  or  executor  for  his  serv- 
ices/'' 

An  administrator  de  bonis  non  is  entitled  to  compensation  for 
his  services,  notwithstanding  the  former  administrator  had  re- 
ceived an  allowance.^'' 

20  Fla.  262;  Lyon  v.  Foscue,  60  Ala.  "=  Squier  v.  Squier,  30  N.  J.Eq.627; 
468;  Blake  v.  Pegram,  109  Mass.  541;  Pomeroy  v.  Mills,  40  N.  J.  Eq.  517,  4 
Clauser's  Estate,  84  Pa.  St.  51.  Atl.  768. 

""In   re   Manice,   31   Hun    (N.   Y.)  "Hill  v.   Nelson,   1   Dem.    (X.  Y.) 

119.  357;  Waddill  v.   Martin";  3  Ired.   Eq. 

"Myer's  Appeal,  62  Pa.  St.  104.  (N.  Car.)  562. 

"Jennison    v.    Hapgood.    10    Pick.  '' Pollard  v.  Barkley,  117  Ind.  40, 17 

(Mass.)    11;    Tiner   v.    Christian,   27  N.  E.  294. 

Ark.  306;  Belknap  v.  Belknap,  5  Allen  '' Schrichte  v.   Stites,   127  Ind.  472, 

(Mass.)  468.  26  N.  E.  V,  1009. 

'^  Walker's  Estate,  9  S.  &  R.  (Pa.)  ="  Cherry  v.   Jarratt,  25   Miss.  221; 

223.  Moore  v.  Randolph,  70  Ala.  575. 


312 


ACCOUNTING    AND    SETTLEMENT.  j^O^ 


The  amount  allowed  an  executor  or  administrator  is  to  be 
credited  on  his  account  as  so  much  paid  out  by  him,  and  any  one 
whose  interest  is  affected  by  such  allowance  may  object  to  it,  by 
exceptions  to  the  report.^^ 

The  amount  of  labor  expended  does  not  furnish  the  sole  cri- 
terion for  the  rate  of  compensation.  The  value  of  the  services 
rendered,  and  the  promptness  of  attention  given,  should  also  be 
considered.  It  is  not  the  policy  of  the  law  to  allow  liberal  com- 
missions to  executors  and  administrators  for  settling  estates  and 
at  the  same  time  allow  payments  to  attorneys  for  doing  the  busi- 
ness such  officers  should  do.  But  the  frequent  employment  by 
them  of  attorneys  to  aid  and  counsel  in  the  transaction  of  the 
business  of  the  estate  is  no  reason  for  not  allowing  their  claim 
for  sen'ices."" 

§  312.  Compensation  allowed  by  will. — By  the  common 
law  neither  executors  nor  administrators  were  entitled  to  com- 
pensation for  their  services  as  such,  but  a  more  enlightened  policy 
now  generally  prevails,  and  not  only  are  such  officers  allowed 
reasonable  compensation  for  their  labor,  time,  and  expenses,  but 
such  compensation  is  made  a  first  charge  against  the  estate  in 
their  hands,  and  is  to  be  paid,  as  part  of  the  expenses  of  admin- 
istration, before  debts,  legacies,  or  distributive  shares. 

A  testator  may  provide  in  his  will  the  compensation  to  be 
allowed  his  executor  for  his  services,  and  the  executor  will  be 
bound  thereby  unless  he  renounces  his  claim  thereto.  The  statute 
reads  as  follows:  When  provision  is  made  by  a  will  for  com- 
pensation to  the  executor  thereof,  the  same  shall  be  deemed  a 
full  satisfaction  for  his  services  in  lieu  of  the  aforesaid  com- 
mission and  extra  allowance,  or  his  share  thereof,  unless  he 
shall,  by  a  written  instrument  filed  in  the  court  issuing  his  let- 
ters, renounce  all  claim  to  such  compensation  given  by  the  will.'^ 

But  where  the  testator  himself  stipulates  in  his  will  what  com- 

^  Schrichte  v.   Stites,   127   Ind.  472,  Trammel  v.  Philleo,  33  Tex.  395 ;  Es- 

26  N   E   77    1009;  Hosack  v.  Rogers,  tate  of  Lancaster,  14  Phila.  (Pa.)  237. 

9  Paige  (n'.  Y.)  461.  =^  Burns'  R.  S.  1908,  §  2919. 

^Powell  V.   Burrus,  35  Miss.  605; 


^06  INDIANA    PROBATE    LAW.  §    3^- 

pensation  shall  be  paid  his  executor  for  his  senices  under  the 
will,  and  the  executor,  knowing  this,  accepts  the  trust  he  will  be 
bound.-* 

If  the  will  leaves  such  compensation  to  be  fixed  by  the  execu- 
tor himself,  it  is  within  the  discretion  of  the  cuurt  to  allow  him 
a  reasonable  compensation.-^ 

The  executor  may  renounce  the  compensation  given  him  by 
the  will  and  rely  wholly  upon  the  discretion  of  the  court  as  to 
what  his  services  are  worth.  Such  election  must  be  filed  in 
writing,  and  while  no  time  is  fixed  by  the  statute  within  which 
the  election  shall  be  made,  it  must  be  exercised  promptly  or  the 
riirht  will  be  lost  bv  his  laches.-" 

A  mere  bequest  to  an  executor  in  the  absence  of  anything  in 
the  will  showing  it  to  be  a  specific  compensation  for  his  services, 
is  not  sufficient  to  deprive  him  of  a  reasonable  compensation.-' 
Nor  will  the  naming  of  any  executor  in  a  will  operate  as  a  dis- 
charge of  any  just  claim  which  the  testator  had  against  such 
executor,  but  the  same  shall  be  settled  according  to  law.-"* 

An  agreement  to  serve  without  compensation,  or  to  serve  for 
a  fixed  compensation,  is  valid  and  binding  after  acceptance  of 
the  trust. -^ 

It  would  seem  that  where,  by  the  terms  of  the  will,  the  func- 

'*  Ross  V.  Conwell,  7  Ind.  App.  375,  of  such  compensation  is,  by  the  stipu- 

34  N.  E.  752 ;  Biscoe  v.  State,  23  Ark.  lation  of  the  contract,  left  to  the  arbi- 

592;  In  re  Hopkins,  32  Hun  (N.  Y.)  trary  determination  of  one  of  the  par- 

618.     In    Ross   v.    Conwell   the    court  ties,   or   to  the   agents   or   officers  of 

saj^s:     'The  rule  just  announced  rests  such  parties,  if  the  same  be  a  corpora- 

upon  the  principle  that  where  the  par-  tion,  it  is  in  the  nature  of  a  contract 

ties  to  an  agreement  have  fixed  the  not  to  resort  to  a  judicial  forum  for  a 

compensation   among  themselves,  the  settlement    of    the    controversy,    and 

courts  will  not  interpose  their  judg-  such  contracts  are  not  binding  in  law." 

ment  as  a  substitute  for  that  of  the  See  People's,  etc.,  Soc.  v.  Werner,  6 

parties,  even  though   such  considera-  Ind.  App.  614,  34  N.  E.  105. 

tion   be    of    indeterminate    value,    but  "^  .\rthur  v.  Nelson,  1  Dem.  (N.  Y.) 

will  give  full  effect  to  the  agreement  337. 

if  it  be  free  from  fraud  or  undue  in-  "'  In  re  Mason,  98  X.  Y.  527 ;  Oden 

fluence."      See    Shover   v.    Myrick,    4  v.    Windley,   2   Jones   Eq.    (N.    Car.) 

Ind.  App.  7,  30  N.  E.  207.  440. 

^  Ross  v.  Conwell,  7  Ind.  App.  375,  =*  Burns'  R.  S.  1908,  §  3128. 

34  N.  E.  752.     "But  when  the  amount  ^  Estate    of    Davis,    65    Cal.    309,   4 


§    ;^1^  ACCOUNTING    AND    SETTLEMENT.  5O7 

tions  of  an  executor  and  of  a  trustee  co-exist,  and  the  same  per- 
son is  called  on  to  perform  two  distinct  kinds  of  service  for  each 
of  which  the  law  awards  compensation,  he  should  receive  com- 
pensation for  both.  "The  court  deals  with  them  in  the  matter  of 
compensation  in  such  cases  precisely  as  if  the  two  trusts  were  in 
different  hands."^'' 

So  where  under  a  will  the  duties  of  an  executor  as  such  are  to 
be  first  performed  and  then  he  is  required  to  assume  duties  as  a 
trustee,  he  will  be  entitled  to  compensation  in  both  capacities. ^'^ 
But  where  the  functions  of  executor  and  that  of  trustee  are  so 
blended  that  they  are  inseparable  then  but  one  compensation 
should  be  allowed.^'  But  in  every  instance  the  intention  of  the 
testator  as  gathered  from  the  will  is  decisive  and  must  be  given 
effect." 

§  313.  Allowance  for  attorney  fees. — It  is  provided  by  stat- 
ute that  no  allowance  shall  be  made  to  any  executor  or  adminis- 
trator for  any  services  rendered  by  him  as  attorney  in  the  settle- 
ment of  the  estate,  but  he  may  be  allowed  for  the  reasonable  fees 
of  an  attorney  rendering  necessary  services  in  such  settlement.^* 

An  executor  or  administrator  has  a  right  to  employ  an  attor- 
ney in  the  management  of  the  estate,  and  the  estate  will  be  held 
liable  for  services  rendered  by  such  attorney."^  And  if  an  execu- 
tor or  administrator  refuse  to  pay  an  attorney  employed  by  him 

Pac.  22;  Bovvker  v.  Pierce,  130  Mass.  ministrator  cannot   charge   the  estate 

262 ;  Ross  v.  Conwell,  7  Ind.  App.  375,  for  services  rendered  it  by  himself  as 

34  X.  E.  752.  attorney.     Taylor  v.  Wright,  93  Ind. 

^  Baker  v.  Johnston,  39  N.  J.  Eq.  121;  Pollard  v.  Barkley,  117  Ind.  40, 

493;  Laytin  v.  Davidson,  95  N.  Y.  263.  17  X.  E.  294. 

"In  Re  Willets,  112  N.  Y.  289,  19        "Lewis  v.  Reed,  11  Ind.  239;  Xave 

N.   E.  690;   McAlpine  v.  Potter,   126  v.    Salmon,  51   Ind.   159.     The  court, 

N.  Y.  285,  27  X.  E.  475.  however,   is   not   bound   by   any  con- 

^  Johnson    v.    Lawrence,  95    N.    Y.  tract  made  between  an  administrator 

154 ;  Brush  v.  Young,  28  X.  J.  L.  237 ;  and  an  attorney  as  to  the  amount  to 

Everson  v.  Pitney,  40  N.  J.  Eq.  539,  5  be  paid  for  services,  unless  such  con- 

Atl.  95.  tract  has  been  specifically  authorized 

"  Shippen  v.  Bard,  42  Pa.   St.  461 ;  by  the  court.     The  matter  of  such  al- 

Lansing  v.  Lansing,  45  Barb.  (N.  Y.)  lowance  is  largely  in  vhe  discretion  of 

182.  the   court.     Richey  v.   Cleet,   46  Ind. 

"  Burns'  R.  S.  1908,  §  2920.    An  ad-  App.  326,  92  X.  E.  175. 


-o8  INDIANA    PROBATE    LAW.  §    313 

in  the  interest  of  the  estate,  the  attorney  may,  as  other  claim- 
ants, file  his  account  for  services  rendered,  against  the  estate.'* 
In  one  case  the  court  says:  "Under  a  fair  and  reasonable  con- 
struction of  this  provision,  it  seems  to  us  that  an  executor  or 
administrator  may  employ  an  attorney  in  the  management  of  his 
decedent's  estate;  that,  in  the  absence  of  any  special  agreement 
to  the  contrary,  such  executor  or  administrator  will  be  person- 
ally liable  to  such  attorney  for  his  reasonable  fees;  that  on  the 
payment  of  such  reasonable  fees,  such  executor  or  administrator 
shall  be  allowed  therefor  by  the  proper  court;  and  that,  in  the 
absence  of  any  special  contract  by  the  attorney,  that  he  will  look 
to  the  decedent's  estate  for  his  pay.  As  his  reasonable  fees  are 
made  a  proper  charge  against  such  estate,  such  attorney  may,  as 
he  may  elect,  enforce  the  collection  of  his  reasonable  fees  from 
such  executor  or  administrator  in  his  personal  capacity ;  or  he  may 
present  his  claim  therefor  to  the  proper  court  for  allowance  as  a 
proper  charge  against  such  estate.  The  contracts  of  an  executor 
or  administrator  cannot  be  regarded  as,  in  any  sense,  the  con- 
tracts of  the  decedent;  they  are  necessarily  the  personal  contracts 
of  the  executor  or  administrator,  and  he  must  be  held  personally 
liable  therefor  when  he  does  not  stipulate  for  exemption  from 
such  liability."" 

The  compensation  of  an  executor  or  administrator  should  not 
be  cut  down  in  order  that  an  attorney  properly  employed,  may 
be  fairly  compensated,  even  where  part  of  the  services  rendered 
by  the  attorney  might,  perhaps,  have  been  performed  by  such 
executor  or  adrninistrator.^** 

Where  the  executor  or  administrator  pays  the  charges  of  an 
attorney  employed  by  him  in  the  interest  of  the  estate,  it  is  the 

'"Scott  V.  Dailey,  89  Ind.  477;  Bott  ^lason,  9  Ind.  App.  651,  Zl  N.  E.  298. 

V.  Barr,  95  Ind.  243.  ''  Estate    of    Lancaster,     14     Phila. 

"^  Long  V.  Rodman,  58  Ind.  58.  (Pa.)  237.  The  court  may  allow  rea- 
Where  counsel  employed  by  an  exec-  sonable  attorney's  fees  to  an  executor 
utor  to  sustain  a  will  against  a  con-  where  he  employs  counsel  in  the  man- 
test  appear  also  for  the  beneficiaries,  agement  of  the  estate,  and  such  al- 
and render  service  for  them  at  their  lowance  may  also  be  made  after  the 
request,  they  may  recover  therefor  as  will  has  been  set  aside.  Roll  v. 
upon   an   implied    promise.      Roll    v.  Mason,  9  Ind.  App.  651,  Zl  N.  E.  298. 


§313  ACCOUNTING    AND    SETTLEMENT.  509 

duty  of  the  proper  court,  under  this  statute,  to  make  to  such 
executor  or  administrator  an  allowance  as  compensation  there- 
for. But  before  the  estate  can  be  made  liable  for  the  charges  of 
an  attorney  for  services  performed  in  its  management,  he  must 
show  an  employment  for  that  purpose  by  the  executor  or  admin- 
istrator of  the  estate.  Neither  the  legatees  nor  heirs  have  power, 
by  contract  with  an  attorney,  to  bind  an  estate  represented  by  an 
executor  or  administrator  for  the  payment  of  attorney  fees, 
however  beneficial  the  services  enjoyed  may  be  for  the  estate.  In 
such  case  the  attorney  can  only  look  to  his  employers  for  com- 
pensation.^" 

An  executor  or  administrator  cannot  act  as  such  and  also  as 
attorney  for  the  estate  and  be  allowed  compensation  for  his 
services  in  both  capacities.  Every  claim  filed  against  an  estate 
must  be  rejected  by  the  executor  or  administrator  before  it  can 
become  the  subject  of  litigation.  The  inducement  to  reject 
claims,  without  regard  to  their  merit,  would  be  greatly  increased 
if  the  executor  or  administrator  might  receive  or  share  in  attor- 
ney's fees  in  resisting  their  payment.  Under  the  statute  no  com- 
pensation whatever  can  be  paid  an  executor  or  administrator  for 
services  as  attorney  in  an  estate  represented  by  him.  This 
statute  is  simply  declaratory  of  the  common  law.  The  fact  that 
an  executor  or  administrator  had  a  partner  who  assisted  in  per- 
forming legal  services  for  the  estate  can  make  no  difference.  It 
would  be  an  easy  method  of  evading  the  law  to  hold  that  an 
executor  or  administrator,  while  he  may  not  be  compensated  out 
of  the  estate  for  his  individual  legal  services,  can  share  fees  with 
a  partner  for  such  services  rendered  the  estate  by  a  firm  of 
which  such  executor  or  administrator  is  a  member.'*'^ 

'"Scott  V.  Dailev,  89  Ind.  477;  on  Trusts,  §  432;  Pollard  v.  Barkley, 
Stuttmeister's  Estate,  75  Cal.  346,  17  117  Ind.  40,  17  N.  E.  294;  Miles  v. 
Pac.  223.  Executors  and  administra-  DeWolf,  8  Ind.  App.  153,  34  N.  E. 
tors  are  personally  liable  for  the  serv-  114.  An  estate  is  liable  for  the  serv- 
ices of  attorneys  employed  by  them  in  ices  of  an  attorney  employed  by  an 
the  absence  of  a  contrary  agreement,  executor  or  administrator  in  and 
Long  V.  Rodman,  58  Ind.  58.  about   the  settlement    of    the    estate. 

'' Taylor  v.  Wright,    93    Ind.    121;  Long  v.  Rodman,  58  Ind.  58;  Scott  v. 

Hough  V.  Harvey,  71  111.  72 ;  1  Perry  Dailev,  89  Ind.  477. 


5IO  INDIANA    PKODATI-:    LAW.  §    314 

In  the  absence  of  an  express  agreement  the  executor  or  admin- 
istrator will  be  personally  liable  for  attorney  fees  in  the  first  in- 
stance.*" And  where  he  has  not  paid  the  fees  the  court  may,  in 
its  discretion,  allow  such  fees  directly  to  the  attorneys.^-  But 
fees  should  not  be  allowed  for  more  attorneys  than  were  actu- 
ally needed.^"'  Nor  should  he  be  allowed  fees  for  attorneys 
whose  employment  was  made  necessary  through  his  own  fault  or 
negligence,^*  nor  for  services  rendered  in  resisting  a  proper 
suit  brought  against  himself,*^  nor  for  services  which  could 
and  ought  to  have  been  rendered  by  the  administrator  himself 
in  person.^" 

An  attorney  who  has  rendered  service  to  one  named  in  a  will 
as  executor  before  his  appointment  and  qualification  as  such 
executor,  is  entitled  to  recover  from  the  estate  a  reasonable  fee 
for  such  service.^' 

It  has  been  decided  that  the  selection  of  an  attorney  for  his 
estate  by  a  testator  in  his  will  to  advise  and  assist  the  executor  in 
winding  up  the  business  of  the  estate  is  not  binding  upon  the 
executor,  and  that  he  may,  if  he  wishes,  employ  other  counsel 
and  pay  him  out  of  tlie  estate.'"" 

§  314.  Settlement  on  resignation,  removal,  etc. — W  here  an 
executor  or  administrator  resigns,  or  is  removed,  he  may  be  re- 
quired to  present  to  the  court  having  jurisdiction  of  the  estate, 
a  full  and  complete  report  of  his  accounts  with  the  estate,  which 

"Alygatt   V.    Willcox,    1    Lans.    (N.  "O'Reilly    v.     Meyer,  4   Dem.    (N, 

Y.)   55.     An  estate  is  not  liable   for  Y.)    161;   Aldridge  v.  McClelland,  36 

the  services  of  an  attorney  employed  X.   J.    Eq.   288;   Fagan   v.   Fagan,    15 

by  legatees.     Scott  v.  Dailey,  89  Ind.  Ala.  335. 

477.  «Ex  Parte  Allen,  89  111.  474;  Lilly 

*"■  Hoke  V.  Hoke,  12  W.  Va.  427.   An  v.  Griffin,  71  Ga.  535. 

executor   is  entitled  to  an   allowance  *"'■  Hurlbut  v.   Hutton,  44  X.  J.   Eq. 

for  attorney's  fees  although  the  will  302.  15  Atl.  417. 

is  set  aside  and  an  administrator  ap-  ■*'  Baker  v.   Cauthorn,  23  Ind.  App. 

pointed.    Nave  v.  Salmon,  51  Ind.  159.  611,  55  N.  E.  963,  77  Am.  St.  443. 

"  Crowder  v.  Shackelford,  35  Miss.  "  Young     v.     Alexander,     16     Lea 

321;  Liddel  v.  McVickar,  11  X.  J.  L.  (Tenn.)    108;    In    re    Ogier's    Estate, 

44,  19  Am.  Dec.  369;  Smyley  v.  Reese,  101  Cal.  381.  35  Fac.  900,  40  Am.  St. 

53  Ala.  89.  25  Am.  Rep.  598;  Estate  61. 
of  Nicholson,   1   Nev.  518, 


§    314  ACCOUNTING    AND    SETTLEMENT.  5II 

report  so  far  as  he  is  concerned  is  a  final  report.  In  case  of  the 
death  of  an  executor  or  administrator  such  account  should  be 
filed  by  his  personal  representative,  or  by  the  sureties  upon  his 
bond.^" 

Such  executor  or  administrator  should  never  be  permitted  to 
resign  his  trust  without,  after  due  notice  to  interested  parties,- 
fully  accounting  for  all  the  property  of  the  estate  received  by 
him,  and  paying  over  any  balance  found  in  his  hands  to  the 
proper  parties  under  the  order  of  the  court.''" 

The  settlement  made  by  an  executor  or  administrator  at  the 
time  of  his  resignation  which  does  not  fully  close  the  business  of 
the  estate  in  his  hands,  and  which  yet  leaves  something  to  be  done 
by  a  successor  is  not  a  final  settlement  of  the  estate  within  the 
meaning  of  the  statute.  Where  he  resigns  before  his  trust  is  fully 
performed,  the  settlement  with  him  only  takes  himself  out  of 
court  and  not  the  estote.^^ 

When  a  report  and  resignation  are  tendered  by  an  executor  or 
administrator,  and  the  report  is  approved  and  the  resignation 
accepted,  such  report  and  resignation  are  final  in  so  far  as  to  be 
binding  upon  all  parties  interested  in  the  estate  upon  all  such 
matters  as  are  properly  embraced  in  the  report  and  the  order  of 
the  court  approving  the  same." 

When  an  executor  or  administrator  resigns  or  is  removed, 
interested  parties  have  the  right  to  object  to  his  final  account,  as 
they  have  to  his  other  accounts.^^  And  after  the  resignation,  in 
so  far  as  any  unsettled  claim  between  himself  and  the  estate  is 
concerned,  his  relation  to  the  estate  differs  in  no  respect  from 
those  of  other  creditors  or  debtors.^* 

The  settlement  of  the  accounts  of  an  executor  or  administrator 

'"Curtis  V.  Bailey,  1  Pick.    (Mass.)  ''Parsons  v.  Milford,  67  Ind.  489; 

198.  Lang  v.  State,  67  Ind.  577. 

'"Thayer  V.  Homer,  11  Met.  (Mass.)  ''State   v.    Peckham,    136   Ind.    198, 

104: Morgan  v.  Dodge,  44  N.  H.  255,  36  N.  E.  28;  Green  v.  Brown,  8  Ind 

82  Am.  Dec.  213;  Haynes  v.  Meeks,  App.  110.  33  N.  E.  979. 

10  Cal.  110,  70  .-Xm.  Dec.  703 n ;  Carter  "  Poulson  v.  National  Bank,  33  N. 

V.    Anderson,    4    Ga.    516;    Waller   v.  J.  Eq.  618. 

Ray,   48    Ala.    468;    Ingram    v.    May-  "'Ingram  v.  :Maynard,  6  Tex.  130. 
nard.  6  Te.x.   130. 


512 


INDJAXA    PROBATE    LAW.  §    3^5 


who  has  died,  been  removed,  or  resigned,  is  in  the  nature  of  a 
transfer  of  the  balance  found  due  to  his  successor.  And  any 
order  based  upon  such  account  should  provide  in  what  way  such 
balance  must  be  paid  over." 

The  order  of  court  in  accepting  and  passing  upon  the  report 
and  resignation  of  an  administrator,  cannot  be  collaterally  at- 
tacked;'" but  it  does  not  preclude  a  suit  upon  his  bond.'*' 

The  probate  court  has  power  to  compel  a  full  accounting  and 
settlement  of  tlie  administration  down  to  the  time  of  the  death, 
removal  or  resignation  of  the  executor  or  administrator.''-  In 
such  accounting  the  same  rules  apply  as  govern  the  settling  of  the 
accounts  of  executors  and  administrators  generally,  and  it  is 
final  and  conclusive  as  to  the  rights  and  liabilities  of  the  estate 
and  the  deceased  or  removed  administrator.  The  administra- 
tion of  the  estate  is  not  affected  by  such  settlement,  but  proceeds 
in  all  respects  as  though  no  change  in  its  representation  had 
taken  place.'''^  An  administrator's  report  showing  a  complete  ac- 
counting of  all  receipts  and  disbursements  and  that  no  funds  re- 
main in  his  hands,  and  accompanied  by  his  resignation  is  not  a 
final  report  within  the  meaning  of  the  statute,  but  leaves  the 
estate  open  for  further  administration."*' 

§  315.  The  account  in  final  settlement. — The  administra- 
tion of  an  estate  implies  a  complete  disposition  of  it  by  the  execu- 
tor or  administrator,  not  only  the  collection  and  reduction  of  the 
assets  to  money,  but  the  payment  of  the  money  to  whomsoever 
is  legally  entitled  whether  it  be  the  creditors,  legatees,  or  dis- 
tributees. And  until  an  executor  or  administrator  can  show  that 
he  has  made  a  lawful  disposition  of  all  the  assets  of  the  estate 
which  have  come  to  his  knowledge,  or  with  which  he  has  been 

'^  Green  v.  Brown,  8  Ind.  App.  110,  Roberts  v.  Spencer,  112  Ind.  85,  13  X. 

33  N.  E.  979;  State  v.  Peckham,  136  E.  129. 

Ind.    198.    36    N.    E.    28 ;    Allison    v.  ''  Sanders  v.  Loy,  61  Ind.  298. 

Abrams,  40  Miss.  747 ;  Price  v.  Sim-  '*  Brooks    v.    Hasten,    69    Mo.    58 ; 

mons,  13  Ala.  749.  State  v.  Gray,  106  Mo.  526,  17  S.  W. 

='  Lang  V.  State,  67  Ind.  577.  500. 

=' Parsons  v.  Milford,  67  Ind.  489;  ^  Green   v.   Brown,    146   Ind.    1.   44 

N.  E.  805. 


^3^5  ACCOUNTING    AND    SETTLEMENT.  qi 


DM 


properly  charged,  the  estate  should  not  be  finally  settled  and  such 
officer  discharged. 

The  statute  provides  that  after  the  debts  and  legacies  of  an 
estate,  and  expenses  of  administration  have  been  paid,  and  all 
assets  of  the  estate  duly  accounted  for,  and  all  claims  in  favor  of 
the  estate  disposed  of  according  to  law,  the  executor  or  adminis- 
trator shall  pay  into  court  the  moneys,  if  any,  remaining  in  his 
hands,  or  distribute  the  same  under  the  order  of  the  court  to  the 
persons  entitled  thereto,  and  be  discharged  from  the  further 
administration  of  the  estate,  and  the  estate  shall  be  by  the  court 
declared  finally  settled.  And  no  final  settlement  shall  be  re- 
voked or  re-opened  after  the  close  of  the  term  in  which  the  same 
shall  have  been  made  except  as  hereinafter  provided.®^ 

The  final  settlement  contemplated  by  this  statute  has  reference 
to  the  ultimate  completion  of  the  business  of  the  trust  created  by 
the  issuance  of  letters  testamentary  or  of  administration,  and  to 
the  final  order  based  upon  such  completion  of  the  business  of  the 
trust,  which  takes  the  estate  out  of  court  and  not  to  the  last  re- 
port of  an  outgoing  executor  or  administrator,  where  he  resigns 
before  his  trust  has  been  fully  performed,  thus  taking  himself 
only,  and  not  the  estate,  out  of  court.^-  The  term  final  settle- 
ment means  not  merely  the  ascertainment  of  the  final  balance  of 
cash  in  the  hands  of  an  executor  or  administrator,  but  a  payment 
of  that  balance  also,  either  into  court  or  to  the  parties  entitled 
thereto  under  order  of  the  court,  so  that  nothing  shall  remain  to 

"  Burns'  R.  S.  1908,  §  2924.  may    authorize    and    direct,   and    said 

•'-"Dufour   V.    Dufour,   28   Ind.  421;  *     *     *     [A.]   now  tenders  his  resig- 

./^ngevine  v.  Ward,  66  Ind.  460;  Par-  nation  as  such    administrator,    which 

sons  V.  Milford,  67  Ind.  489.     Where  is    accepted,    and    said    administrator 

an  administrator  filed  what  purports  finally  discharged,"  the  provisions  of 

to  be  his  final  report,  to  which  excep-  the   order   continuing   the  estate    for 

tions  were  filed  by  claimants,  but  the  certain  purposes,    and    accepting    the 

exceptions     are     subsequently     with-  resignation  of  the  administrator,  are 

drawn,  with  right  to  enforce  and  col-  wholly  inconsistent  with  the  idea  of 

lect  their  claims  in  the  future,  and  the  final     settlement,     and     an     adminis- 

order    concludes    as    follows  :      "And  trator  de  bonis  non  may  be  appointed, 

the  estate  is  continued  as  to  matters  Green  v.  Brown,  8  Ind.  App.  110,  33 

embraced  in  the  exceptions  only  for  X.  E.  979. 
further  administration    as    the    court 

33 — Pro.  L.aw. 


514 


INDIANA    PROBATE    LAW.  ^3'^ 


be  (lone  by  sucb  executor  or  administrator  in  liis  fiduciary 
capacity,  thus  permitting  liim  to  be  fully  discharged  fruni  his 
trust,  as  having  completely  performed  them."^ 

There  can  be  no  final  settlement  of  an  estate  within  the  mean- 
ing of  the  statute,  where  no  assets  have  been  discovered  on  which 
to  administer."* 

The  final  settlement,  however,  does  not  preclude  a  further 
inquiry  in  regard  to  assets  of  the  estate  in  the  hands  of  the  ex- 
ecutor or  administrator  which  have  n(jt  been  accounted  for  or 
passed  upon."'"  And  while  the  presumption  is  very  strong  that 
all  the  property  of  the  estate  has  been  accounted  for,  yet  such 
final  settlement  and  the  decree  of  the  court  thereon,  is  not  con- 
clusive as  to  property  accidentally  or  fraudulently  withheld  from 
the  account.  For  a  court  cannot  bind  the  parties  by  deciding 
what  was  not  before  it."" 

§  316.  The  time  when  final  account  shall  be  filed. — Lnder 
the  statute,  there  can  be  no  final  settlement  of  an  estate  until 
after  the  expiration  of  one  year  from  the  issuance  of  letters 
testamentary  or  of  administration  thereon  and  notice  thereof." 
But  executors  and  administrators  are  required,  at  the  end  of  one 
year  from  their  appointment  and  notice  thereof,  or  as  soon 
thereafter  as  may  be,  to  file  in  the  court  issuing  their  letters  a 
true  and  complete  account  exhibiting  the  exact  condition  of  the 

'''Dnfour  v.   Dufour,  28  Ind.   421;  "' Langsdale  v.  Woollen,    120    Ind. 

Johnson  V.    Hedrick,  33   Ind.    129,   5  78.  21  N.  E.  541. 

Am.  Rep.  191.    The  phrase  "'final  set-  "  :Mc-'-\.fee  v.   Phillips,  25   Ohio   St. 

tlement  of  the  estate,"  as  used  in  the  374;   Brown  v.  Brown,  53  Barb.    ( X. 

last  sentence  of  §  2828,  Burns'  R.  S.  Y.)  217:  Flanders  v.  Lane,  54  N.  H. 

1908,  means  the  filing  of  the  account  390.                      » 

of  the  executor  or  administrator  for  '"Griffith  v.  Godey,  113  U.  S.  89,  28 

final  settlement,  and  claims  not  filed  L.  ed.  934,  5  Sup.  Ct.  383 ;  In  re  Sout- 

thirty  days  before    such    filing    at    a  ter,  105  X.  Y.  514,  12  X.  E.  34;  Cros- 

time  and  in  the  manner  authorized  by  san  v.  AlcCrary,  37  Iowa  684;  Smith 

law  will  be  barred.    Roberts  v.  Spen-  v.  Lambert,  30  Me.  137. 

cer,  112  Ind.  81,  13  X.  E.  127;  Roberts  "' Fleece  v.  Jones,  71  Ind.  340;  Shir- 

V.  Spencer,  112  Ind.  85,  13  X.  E.  129;  ley  v.  Thompson,  123  Ind.  454,  24  X. 

Schrichte  v.   Stites,   127  Ind.  472,  26  E.  253. 
X.  E.  77,   1009:   Jackson  v.   Butts,  5 
Ind.  App.  384,  32  X.  E.  96. 


§    317  ACCOUNTING    AND    SETTLEMENT.  515 

estate."-  If  the  report  then  filed  is  not  in  final  settlement,  it  is 
the  duty  of  the  executor  or  administrator  to  make  a  final  settle- 
ment within  six  months  thereafter,  unless  otherwise  ordered  by 
the  court  for  good  cause  shown.  After  one  year  from  giving 
notice  of  appointment  has  expired,  the  court  may,  in  its  discre- 
tion, and  for  cause  shown,  peremptorily  order  an  executor  or  ad- 
ministrator to  make  final  settlement,  and  may  enforce  compli- 
ance by  attachment;'"'"  and  where  an  executor  or  administrator 
has  collected  all  the  assets,  and  paid  them  out  on  claims  allowed 
against  the  estate,  it  is  his  duty  under  the  law  to  make  a  final 
settlement  of  such  estate  after  the  lapse  of  one  year  from  giving 
notice  of  his  appointment.^" 

Under  the  statute  a  creditor  has  one  year  in  which  to  file  his 
claim.  Until  that  time  has  elapsed  the  executor  or  administrator 
cannot  cut  off  that  right  by  making  a  premature  settlement  of 
the  estate.^ ^ 

§  317.  No  final  settlement  with  claim  pending, — An  execu- 
tor or  administrator  cannot  make  a  final  settlement  of  his  dece- 
dent's estate  while  a  claim  is  pending  against  such  estate,  un- 
allowed or  undisposed  of,  and  if  such  settlement  should  be  made 
through  the  mistake  or  fraud  of  the  executor  or  administrator, 
the  creditor,  whose  claim  is  thus  left  unpaid,  may,  by  taking  the 
proper  legal  steps,  have  such  settlement  reopened  or  set  aside, 
unless  provision  for  its  payment  has  been  made  according  to  this 
statute.'-  If  the  claim  was  properly  pending,  there  would  be 
sucli  illegality  in  the  final  settlement  as  would,  if  properly  pre- 
sented, justify  and  require  the  setting  aside  of  the  final  settle- 
ment ;  but  that  illegality  will  not  be  sufficient  to  render  the  order 
of  the  court  approving  such  final  settlement  absolutely  void,  and 
so  long  as  the  settlement  is  not  set  aside  in  some  proper  manner, 
it  is  valid  and  conclusive." 

"".■^nte,  §303.  "Tilson  v.   Hoosier  etc.  Fruit  Co., 

""Ante,  §  307.  43    Ind.    App.    684,    88    N.    E.    524; 

'"Roberts  v.   Spencer,   112   Ind.   81,  Heaton   v.   Knowlton,    65    Ind.    255; 

13  X.  E.  127.  Reed  v.  Reed,  44  Ind.  429. 

•'  Shirley    v.    Thompson,    123    Ind.  ''  Dillman   v.    Barber,   114  Ind.  403, 

454.  24  X.  E.  253 ;  Floyd  v.  Miller,  61  16  X.  E.  825. 
Ind.  224;  Dillman  v.  Barber,  114  Ind. 
403,  16  X.  E.  825. 


5l6  INDIANA  PROBATE  LAW.  §  318 

While  taxes  are  not  such  claims  as  the  law  requires  to  be  filed 
against  a  decedent's  estate,  yet  they  are  such  claims  or  charges  as 
must  be  paid  by  the  executor  or  administrator  before  making  a 
final  settlement  of  the  estate.  Such  claim  must  be  taken  notice 
of  without  being  filed,  and  if  the  executor  or  administrator  pro- 
ceeds to  make  a  final  settlement  without  paying  such  claim,  he 
does  so  at  the  peril  of  having  such  settlement  set  aside.'* 

But  if  at  the  time  of  final  settlement  of  an  estate,  any  claim  be 
pending  against  it  unallowed,  and  the  creditors,  heirs,  devisees  or 
legatees  shall  execute,  to  the  approval  of  the  claimant,  a  bond 
conditioned  for  the  payment  of  the  claim  and  costs,  if  adjudged 
in  favor  of  the  claimant,  if  it  shall  be  allowed,  the  estate  shall  be 
finally  settled.  The  claim  shall  remain  on  the  docket  and  be  dis- 
posed of  as  if  such  settlement  had  not  been  made,  and  the 
obligors  in  such  bond  may  appear  and  make  defense  thereto.'^ 

Only  in  compliance  with  this  statute  can  the  general  rule  for- 
bidding a  final  settlement  of  the  estate  while  a  claim  is  pending 
undisposed  of,  be  avoided. 

In  cases  where  claims  due  the  estate  are  outstanding  uncol- 
lected there  is  a  method  provided  whereby  the  final  settlement  of 
the  estate  need  not  be  delayed  for  the  collection  of  such  claims. 
The  statute  is  as  follows:  If,  at  the  time  of  the  final  settlement 
of  any  estate,  there  be  any  claims  due  such  estate  uncollected,  and 
not  money  enough  on  hand  to  pay  all  the  creditors,  if  any  such 
creditor,  whose  claim  does  not  exceed  the  amount  of  such  claim, 
will  accept  it  in  discharge  of  so  much  of  his  claim,  it  shall  be  de- 
livered or  assigned  to  him  by  the  executor  or  administrator,  and 
the  estate  shall  be  finally  settled.^" 

§  318.  Notice  of  final  settlement. — That  the  final  settle- 
ment of  an  administration  account  may  be  made  binding  and 
conclusive  it  is  essential  that  all  who  may  be  interested  in  such 
settlement  should  have  notice  thereof.     The  same  statutes  as  to 

"  Cullop  V.  Vincennes,  34  Ind.  App.         "=  Bums'  R.  S.  1908,  §  2923. 
667,  72  N.  E.   166 ;   Graham  v.  Rus-        '"  Burns'  R.  S.  1908,  §  2922. 
sell,  152  Ind.  186,  52  N.  E.  806. 


§    3l8  ACCOUNTING    AND    SETTLEMENT.  517 

the  giving  of  notice  to  heirs  and  others  interested  in  the  estate, 
the  time  of  such  notice,  the  manner  of  giving  it,  the  hearing  on 
the  report,  etc.,  appHcable  to  current  settlements,  is  also  made  to 
apply  to  final  settlement  accounts/'  The  statute  requires  notice 
to  be  given  by  executors  and  administrators,  to  all  persons  inter- 
ested in  the  estate,  of  the  time  fixed  for  the  hearing  of  any  mat- 
ters relating  to  a  final  settlement  report  theretofore  filed;  but 
the  statute  does  not  require  the  notice  to  be  signed  by  the  execu- 
tor or  administrator,  nor  does  it  particularly  specify  by  whom  it 
shall  be  signed,  or  that  it  shall  be  signed  at  all.  And  if  the 
executor  or  administrator  causes  due  notice  to  be  given,  as  re- 
quired, by  publication  and  posting,  since  the  notice  required  is 
one  which  pertains  to  a  judicial  proceeding,  there  is  neither  im- 
propriety nor  departure  from  the  statute  if  the  notices  are  signed 
by  the  clerk  of  the  court  in  which  the  proceeding  is  pending,  in- 
stead of  being  signed  by  such  executor  or  administrator.'^*  Such 
notice  is  also  in  substantial  compliance  with  the  statute  if  di- 
rected "to  the  heirs,  creditors  and  legatees,"  instead  of  "to  all 
persons  interested  in  said  estate."  As  applied  to  the  subject- 
matter,  one  is  the  equivalent  of  the  other. "^^  Where  a  notice  of 
final  settlement  has  been  given,  however  defective  in  form,  and 
the  court  has  taken  final  action  upon  the  report  of  the  executor 
or  administrator,  such  action  cannot  be  attacked  in  a  collateral 
proceeding.-" 

The  statute  requires  the  time  of  hearing  the  report  to  be  fixed 
by  indorsement  thereon  by  the  clerk,  but  such  statute  is  merely 
directory.      The   object   of    such   requirement   is   to   enable   the 

■'  Williams    v.    Williams,    125    Ind.  ment  of  an  estate  by  an  administrator, 

156,  25  X.  E.   176;    see    also    §    304,  upon  such  notice  as  the  statute  pre- 

ante.     Glessner    v.     Clark,     140    Ind.  scribes,  is  an  adjudication  of  all  mat- 

427,  39  X.  E.  544.  ters  properly  involved  in  such  settle- 

'*  Roberts  v.    Spencer,   112   Ind.   81,  ment;    but    matters    which    have    not 

13    X.    E.    127;    Wright  v.   Wells,  29  been  wholly  or  in  part  subject  to  the 

Ind.  354.  process    of    administration   cannot   be 

"Roberts  v.    Spencer,    112   Ind.   81,  said  to  have  been  adjudicated.     Car- 

13  N.  E.  127.  ver  v.  Lewis,  104  Ind.  438,  2  N.  E. 

"Jones  V.   Jones,   115   Ind.   504,   18  705 ;  Barnett  v.  Vanmeter,  7  Ind.  App. 

N.  E.  20;  Kleyla  v.  Haskett,  112  Ind.  45,  23  N.  E.  666. 
515,  14  N.  E.  387.    The  final  settle- 


5l8  INDIANA  PROBATE  LAW.  §  3lS 

executor  or  administrator  to  give  to  those  interested  in  tlie  estate 
the  notice  provided  for  by  the  statute.  It  is,  therefore,  at  best  a 
mere  irregularity  for  the  court  itself  to  fix  the  date  at  which  the 
report  shall  be  heard.  And  if  notice  is  given  of  such  time  so 
fixed,  the  hearing  at  that  time  does  not  render  the  final  order 
void.«^ 

An  order  of  court  discharging  an  administrator  upon  a  settle- 
ment made  by  him  without  giving  notice  as  required  by  the 
statute,  is  of  no  force  and  effect,  and  does  not  constitute  an 
adjudication  of  any  right  of  heirs  or  creditors  who  did  not  ap- 
pear at  such  final  settlement.^^ 

Where  notice  has  been  given  as  required  by  the  statute,  the 
order  of  the  court  approving  the  final  settlement  will  be  conclu- 
sive although  rendered  in  the  absence  of  all  the  parties  but  the 
administrator.**^ 

A  notice  that  a  partial  settlement  will  be  made  will  not  au- 
thorize the  making  of  a  final  settlement,  but  a  final  settlement 
without  notice  will  only  have  the  effect  of  a  partial  settlement.*"* 

The  filing  of  a  final  report  and  the  giving  of  the  notice  re- 
quired by  the  statute  confers  jurisdiction  upon  the  probate  court 
to  hear  and  determine  all  matters  involved  in  such  report.*^ 

It  will  be  obsen-ed  that  section  2912,  Burns'  R.  S.  1908,  regard- 
ing notice  only  provides  for  giving  notice  by  publication  and  post- 
ing, and  yet  it  appears  from  section  2925,  that  unless  interested 
parties  have  been  "personally  summoned,"  or  do  not  appear  at  the 
hearing  upon  a  final  report  of  an  executor  or  administrator,  they 
are  not  bound  by  the  order  of  settlement  made  by  the  court, 

■''Williams    v.    Williams,    125    Ind.  "Fox  v.  Rhodes,  43  Ind.  .\pp.  573, 

156,  25  X.  E.  176.     Jurisdiction  over  88  N.  E.  92. 

the  subject  of  distribution  of  the  sur-  ^'^  Jones    v.    Graham,   36  Ark.   383; 

plus  of  an  estate  to  the  heirs  results  Kellett  v.  Rathbun,  4  Paige   (X.  Y.) 

as  an  incident  to  the  final  settlement,  102. 

without   additional   notice,   and  while  **  King    v.     Collins,    21     x-Ma.    363 ; 

issues   may  be   formed  upon   adverse  Frank  v.  People,  147  111.  105,  35  X'.  E. 

claims  growing  out  of  distribution,  it  530;    Grant  v.   Hughes,    94    X^.    Car. 

is  not  essential  that  thej^  should  be.  231 ;  Winborn  v.  King,  35  Miss.  157. 

Jones  V.  Jones,  115  Ind.  504,  18  X.  E.  *"  Mefford  v.  Lamkin,  38  Ind.  App. 

20.  33,  76  X.  E.  1024.  11  X.  E.  960. 


319 


ACCOUNTING    AND    SETTLEMENT.  519 


although  proper  notice  by  posting  and  pubhcation  had  been 
given.  It  resuhs  from  this  that  no  order  of  final  settlement  is 
conclusive  and  unassailable  unless  all  interested  parties  are 
brought  into  court  by  personal  notice.'" 

§  319.  Contesting  the  report. — The  report  of  an  executor 
or  administrator  in  hnal  settlement  of  an  estate  is  not  a  com- 
plaint, nor  in  the  nature  of  a  complaint.  It  is  not  the  subject  of 
demurrer,  nor  can  it  be  assigned  as  error  in  the  Supreme  Court, 
that  such  report  did  not  state  facts  sufficient  to  entitle  the  execu- 
tor or  administrator  to  his  discharge.  In  such  case  the  rules  of 
pleading  in  civil  actions  are  not  applicable.  Where  a  party  in- 
terested in  a  decedent's  estate  is  not  satisfied  with  the  final  report 
of  the  executor  or  administrator  of  such  estate,  he  must,  by  ex- 
ceptions to  such  report,  point  out  to  the  court  clearly  and  specific- 
ally the  grounds  of  his  objection. "'  And  where  objections  are 
filed  to  such  final  report,  in  the  proceedings  on  the  hearing  of 
such  objections  the  executor  or  administrator  of  the  estate  stands 
as  the  plaintiff  and  the  objectors  as  defendants.  The  executor  or 
administrator  is  reciuired  to  establish  the  correctness  of  his  re- 
port, in  respect  to  such  matters  as  may  be  embraced  in  the  excep- 
tions filed  by  such  objectors,  and  this  places  the  burden  of  proof 
on  him  and  gives  him  the  right  to  begin  and  conclude  the  evi- 
dence, and  to  open  and  close  the  argument.*^ 

'Ressner   v.    Clark,    140   Ind.   427,  exceptions   filed  to  reports  of  execu- 

39  X    E    544  I'^^'s    or    administrators.      Taylor    v. 

«^'conger  v.  Babcock,  87  Ind.  497;  Wright,  93  Ind.  121.  On  the  trial 
Dohle  V.  Stults,  92  Ind.  540.  Pay-  of  exceptions  filed  to  a  report  the 
ment  of  claims  out  of  their  order  is  burden  of  proof  is  upon  the  executor 
cause  for  exceptions  to  a  final  re-  or  administrator  to  show  the  correct- 
port.  Cunningham  v.  Cunningham,  ness  thereof.  Taylor  v.  Burk,  91 
94   Ind.   557.     An   answer   is   not   re-  Ind.  252. 

quired  to  exceptions  to  a  report,  and        ^  Wysong  v.    Nealis,   13   Ind.   App. 

no  question  is  raised  by  a  demurrer  165,  41  N.  E.  388;  Brownlee  v.  Hare, 

to  such  an  answer.     Dohle  v.  Stults,  64    Ind.    311;    Hamlyn   v.    Nesbit,    37 

92   Ind.   540.     By  consent   of   parties  Ind.  284.     The  filing  of  his  final  ac- 

exceptions    to    a    report    may   be    re-  count    by    an    administrator    confers 

f erred     to     a     master    commissioner,  jurisdiction    upon   the    court   to   hear 

Cunningham  v.  Cunningham,  94  Ind.  all    matters    pertaining    or    incidental 

557.     Jury  trials  are  not  allowed  on  to  the   final  settlement  of  the  estate, 


520  INDIANA  PROBATE  LAW.  §  32O 

And  the  report  is  admissible  in  evidence  against  the  executor 
or  administrator  making  it,  but  not  in  his  favor. ^° 

One  who  was  represented  at  a  final  settlement  only  by  his 
guardian,  and  such  guardian  was  also  the  administrator  of  the 
estate,  is  said  to  have  no  notice  of  such  settlement  and  not  to  be 
present  at  the  consideration  of  the  final  report,  as  the  guardian 
could  not  represent  both  his  ward  and  the  estate.^*' 

Upon  exceptions  to  a  final  report  a  trial  may  be  had  before  the 
court  and  the  court  may  make  a  special  finding  of  facts  and  state 
conclusions  of  law  thereon."^  And  upon  a  final  ruling  of  the 
court  made  after  a  trial  of  exceptions  to  a  final  report,  a  motion 
for  a  new  trial  may  be  filed  as  in  a  civil  action."^  But  where  the 
exceptions  are  only  to  certain  specified  items  in  the  report  and 
the  special  finding  covers  these  items,  a  motion  for  a  venire  de 
novo  on  the  ground  that  the  findings  do  not  cover  the  entire 
report  should  be  overruled. ^^ 

§  320.  The  order  of  final  settlement. — The  approval  of  the 
final  settlement  account,  the  final  settlement  of  the  estate,  and 
the  discharge  of  the  executor  or  administrator  by  the  proper 
court,  are  an  adjudication  of  all  questions  involved,  and  cannot 
be  assailed  in  a  collateral  proceeding;  and  so  long  as  such  final 
settlement  stands,  interested  parties  are  bound  by  it.  Such  settle- 
ment is  a  judicial  proceeding,  and  a  judgment  of  a  court  of 

and  where  notice  has  been  given  of  port,  and  he  has  a  right  to  open  and 

such  filing  by  the  clerk,  however  de-  close    both    the    evidence    and    argu- 

fective    in    form,    the    action    of    the  ment  on  the  trial  of  the  cause.    Tay- 

court  in  the  final  settlement  and  dis-  lor  v.  Burk,  91  Ind.  252. 

tribution  of  the  surplus  cannot  be  at-  *"  Beal  v.  State,  11  Ind.  231. 

tacked     in     a     collateral     proceeding.  ""  State  v.  Burkam,  23  Ind.  App.  271, 

Jones  v.   Jones,   115   Ind.  504,  18  N.  55  N.  E.  237. 

E.   20.      Where   the   executor   or   ad-  '''  Swift    v.    Harlej^    20    Ind.    App. 

ministrator  submits  to  the  court  his  614,   49   N.    E.    1069;    Taylor   v.    Mc- 

final  settlement  report,  in  the  matter  Grew,    29    Ind.    App.    324,    64    N.    E. 

of   his   decedent's   estate,   and   excep-  651  ;   ante,   §  305. 

tions  are  filed  to  such  report,  requir-  ""  McDonald  v.  Moak,  24  Ind.  App. 

ing  the  trial  of  questions  of  fact,  the  528,  57  N.  E.  159. 

burden  of  the  issue  is  on  the  execu-  °^  Roberts  v.  Dimmett,  45  Ind.  App. 

tor    or   administrator   to    sustain   and  566,  88  N.  E.  870. 

establish    the    correctness    of    his    re- 


320 


ACCOUNTING    AND    SETTLEMENT. 


521 


record  having  jurisdiction  over  the  subject-matter  and  the  par- 
ties, and  is  res  adjudicata.^^ 

So  long  as  the  final  settlement  of  an  executor  or  administrator 
remains  in  force  it  is  to  be  considered  as  an  adjudication  of 
matters  lawfully  embraced  within  it,  and  as  a  bar  to  an  action 
seeking  to  reopen  questions  settled  by  it.^^ 

So  long  as  the  final  settlement  of  an  estate  remains  unrevoked 
and  in  full  force,  letters  of  administration  de  bonis  non  cannot 
be  issued  upon  such  estate,  nor  can  any  further  administration 
upon  such  estate  be  permitted  by  any  executor  or  administrator, 
however  appointed  f'^  except  as  provided  in  section  2395,  Burns' 
R.  S.  1894. 

Under  a  former  statute  which  did  not  require  that  a  claim 
secured  by  a  mortgage  should  be  filed  against  an  estate,  it  was 
held  that  a  final  settlement  of  a  deceased  debtor's  estate  without 
the  payment  of  a  mortgage  claim  was  no  defense  to  an  action 
against  heirs  or  purchasers  to  foreclose  a  mortgage  made  by  the 
decedent  to  secure  such  claim.^^ 


'■'*  Kuhn  V.  Boehne,  27  Ind.  App. 
340,  61  X.  E.  199;  Sanders  v.  Loy, 
61  Ind.  298;  Candy  v.  Hanmore,  76 
Ind.  125;  Silvers  v.  Canary,  114  Ind. 
129.  16  X.  E.  166;  Holland  v.  State, 
48  Ind.  391;  Pate  v.  Moore,  79  Ind. 
20;  State  v.  Slauter,  80  Ind.  597; 
Carver  v.  Lewis,  104  Ind.  438,  2  N. 
E.  705;  Carver  v.  Lewis,  105  Ind.  44, 
2  X.  E.  714;  Castetter  v.  State,  112 
Ind.  445,  14  X.  E.  388.  In  the  case 
last  cited  it  is  said :  "Such  adjudica- 
tions are  conclusive,  because  the  law 
requires  that  guardians  and  adminis- 
trators make  reports  from  time  to 
time,  and  that  they  make  final  re- 
ports and  settlement  when  their  re- 
spective trusts  have  been  adminis- 
tered. Of  the  making  of  all  such  re- 
ports those  interested  must  take  no- 
tice, unless  the  statute  makes  provi- 
sion that  notice  be  given." 

''Briscoe  v.  Johnson,  73  Ind.  573; 


Parsons  v.  Milford,  67  Ind.  489. 
Where  final  settlement  of  a  deceased 
partner's  estate  is  made  in  the  face 
of  judgmients  against  the  estate  for 
partnership  liabilities,  a  surviving 
partner  who  pays  a  part  of  the  judg- 
ment before  and  a  part  after  the  set- 
tlement has  an  interest  in  the  estate 
to  the  extent  of  the  ratable  propor- 
tion of  the  judgments  owing  thereby; 
the  fact  that  he  had  not  paid  all  the 
judgments  and  filed  a  claim  for  con- 
tribution before  final  settlement  not 
excusing  the  administratrix  from 
paying  the  proportion  owing  by  the 
estate.  Harter  v.  Songer,  138  Ind- 
161,  37  X.  E.  595. 

"'Croxton  v.  Renner,  103  Ind.  223, 
2  X.  E.  601 ;  Vestal  v.  Allen,  94  Ind. 
268;  Pate  v.  Moore,  79  Ind.  20. 

"'McCallam  v.  Pleasants,  67  Ind, 
542. 


522 


IXDIAXA  PROBATE  LAW.  §  320 


An  order  of  final  settlement  necessarily  means  a  determination 
of  all  matters  proper  to  be  included  therein. "'* 

And  the  approval  of  a  final  settlement  report  is  an  adjudica- 
tion that  the  executor  or  administrator  has  properly  accounted 
for  all  the  assets  of  the  estate  which  came  to  his  hands."''  Such 
approval  when  duly  entered  of  record  in  the  proper  order  book 
has  all  the  force  and  effect  of  a  final  judgment.^ 

A  guardian  who  is  not  the  administrator  of  the  estate  may 
represent  his  ward  in  the  settlement  of  the  estate,  and  may  re- 
ceipt for  the  share  of  his  ward.  But  where  one  is  both  guardian 
and  administrator  the  two  offices  are  antagonistic,  and  he  could 
not  as  guardian  approve  his  own  report  as  administrator  by  re- 
ceipting himself  for  his  ward's  share  of  such  estate  on  final  set- 
tlement, and  an  order  of  court  approving  such  settlement  is  void 
as  to  such  ward  as  being  made  without  notice.^ 

A  judgment  approving  the  final  report  of  an  administrator  is 
conclusive  so  long  as  it  stands  uncliallenged,  and  it  is  immaterial 
whether  the  administrator  distributes  the  money  directly  or  pro- 
cures an  order  to  pay  it  to  the  clerk  for  designated  persons,  for 
such  an  order  is  part  of  the  final  settlement.^ 

""  Green  v.  Brown,  8  Ind.  App.  110,  notes,  belonging  to  the  estate,  which 

33  X.  E.  979.     The  filing  of  his  final  lie  failed  to  include  in  the  inventory 

account  by   an   administrator  confers  and    account    for,    but    converted    to 

jurisdiction    upon    the   court   to    hear  his  own  use.     Nor  can  the  fact  that 

all    matters    pertaining    or    incidental  such  notes  were  held  by  the  adminis- 

to  the  final  settlement  of  the  estate,  trator,     before     his     appointment     as 

and  where  notice  has  been  given  of  such     as     trustee     for    the     decedent 

such  filing  by  the  clerk,  however  de-  while   living,   change   the  case.     Car- 

fective    in    form,    the    action    of    the  ver  v.   Lewis,   104  Ind.  438,  2  N.   E. 

court  in  the  final  settlement  and  dis-  705,. 

tribution  of  the  surplus  cannot  be  at-  ""  Kuhn    v.    Boeline,    27    Ind.    App. 

tacked     in     a     collateral     proceeding.  340,  61  N.  E.  199. 

Jones  V.  Jones,  115  Ind.  504,  18  N.  E.  '  State    v.    Burkam.    23    Ind.    App. 

20.    While   the   final   settlement   of   a  271.  55  X.  E.  237. 

decedent's  estate  remains  in  force,  it  "  State    v.    Burkam,    23    Ind.    App. 

is  conclusive   upon  the  parties   inter-  271,  55  X'.  E.  237. 

ested,  and  an  action  cannot  be  main-  '  Mefiford  v.   Lamkin,  38  Ind.  App. 

tained  against  the  discharged  admin-  33,  76  N.  E.  1024,  77  N.  E.  960. 
istrator    to    recover    the    proceeds    of 


§    3^1  ACCOUNTING    AND    SETTLEAIENT.  523 

When  a  final  report  is  approved  by  the  court  the  administrator 
or  executor  is  entitled  to  an  order  of  discharge  to  be  entered  as 
a  part  of  the  final  judgment.* 

§321.  Reopening  or  setting  aside  final  settlements. — As 
we  have  seen,  the  judgment  of  the  court  approving  the  final 
settlement  made  by  an  executor  or  administrator  is  impervious 
to  collateral  attack,  but,  like  other  judgments,  such  order  is  sub- 
ject to  direct  attack  either  by  appeal  or  by  a  compliance  with  the 
statute.  It  is  provided  that  no  final  settlement  shall  be  revoked 
or  reopened  after  the  close  of  the  term  at  which  the  same  shall 
have  been  made,  except  as  provided  in  the  next  section.''  This 
section  reads  as  follows:  "When  final  settlement  of  an  estate 
shall  have  been  made  and  the  executor  or  administrator  dis- 
charged, any  person  interested  in  the  estate,  not  appearing  at  the 
final  settlement,  and  not  personally  summoned  to  attend  the 
same,  may  have  such  settlement  or  so  much  thereof  as  affects 
him  adversely,  set  aside,  and  the  estate  reopened,  by  filing  in  the 
court  in  which  the  settlement  was  made,  within  three  years  from 
the  date  of  such  settlement,  his  petition,  particularly  setting  forth 
the  illegality,  fraud,  or  mistake  in  such  settlement  or  in  the  prior 
proceedings  in  the  former  administration  of  the  estate,  affecting 
him  adversely.  The  executor  or  administrator  of  the  estate,  and 
any  of  the  creditors,  heirs,  devisees,  or  legatees  of  the  decedent 
adversely  interested  in  the  matters  alleged  in  such  petition,  shall 
be  made  defendants  thereto,  and  shall  be  entitled  to  such  notice 
of  the  pendency  thereof  as  is  required  to  be  given  under  the  code 
of  civil  procedure  to  defendants  in  ordinary  actions.  If  any 
person  interested  in  an  estate  shall,  at  the  time  of  the  final  settle- 
ment thereof,  be  under  legal  disabilities,  he  may  file  such  petition 
within  three  years  from  the  time  of  the  removal  or  cessation  of 
such  disability."'^ 

*  Hartzell  v.  Hartzell,  Zl  Ind.  App.  istrators    for    fraud,   mistake   or   ille- 

481,  76  X.  E.  439.  gality.     Pollard  v.   Barkley,   117  Ind. 

°  Burns'  R.  S.  1908,  §  2924.  40,    17   X.   E.  294.     The  final   settle- 

°  Burns'    R.    S.    1908,    §  2925.     The  ment  of  an  estate,  while  a  properly 

circuit    courts    have    jurisdiction    to  filed  claim  against  it  is  pending  and 

set  aside  final  settlements  of  admin-  undisposed    of,    is    an    illegality    for 


524 


INDIANA    PROBATE    LAW, 


§    321 


The  intention  of  the  statute  is  to  protect  executors  and  admin- 
istrators from  suits,  except  for  mistake  or  fraud,  where  the 
order  of  final  settlement  has  not  been  appealed  from;  but  the 
mistakes  contemplated  by  the  statute  are  mistakes  of  fact  and  not 
mistakes  or  errors  of  law  committed  on  the  settlement.'^  The 
provisions  of  this  statute  do  not  apply' to  the  final  settlement  and 
reports  of  trustees  under  a  will  appointed  by  the  court.* 

One  who  was  personally  summoned  to  appear  at  the  final  hear- 
ing, or  who  not  being  summoned  voluntarily  appeared  thereat, 
cannot  have  such  settlement  set  aside  for  any  matter  which 
might  have  been  presented  and  determined  at  that  hearing." 

Applications  to  set  aside  a  final  settlement  must  show  that 
tlie  complaining  party  was  not  personally  notified  to  appear  and 
did  not  appear  at  the  hearing  had  on  the  final  report.^*^ 


which  the  settlement,  upon  a  proper 
showing,  will  be  set  aside.  Dillman 
V.  Barber.  114  Ind.  403,  16  N.  E.  825. 

'Camper  v.  Hayeth,  10  Ind.  528; 
State  V.  Hughes,  15  Ind.  U34.  It  is 
not  good  ground  for  setting  aside  a 
final  settlement  of  an  estate  that,  by 
mistake,  the  administrator  had  col- 
lected of  a  debtor  the  full  amount  of 
his  note,  a  credit  indorsed  on  the 
note  being  overlooked,  no  reason  be- 
ing shown  why  the  mistake  could  not 
have  been  discovered  before  the  final 
settlement.  Dickey  v.  Tyner,  85  Ind. 
100. 

'Boyd  V.  Caldwell,  95  Ind.  392. 

'Crum  V.  Meeks,  128  Ind.  360,  27 
N.  E.  722.  A  claimant  who  has  been 
personally  summoned  to  attend  a 
final  settlement  hearing  must  then 
appear  and  present  the  facts  regard- 
ing his  claim,  and,  in  case  of  an  ad- 
verse ruling,  his  remedy  is  by  ap- 
peal. He  cannot  afterward  have  the 
estate  re-opened  under  the  provisions 
of  §  2925,  Burns'  R.  S.  1908.  Dill- 
man  v.  Barber,  114  Ind.  403,  16  N.  E. 
825.    . 


"•Dillman  v.  Barber,  114  Ind.  403, 
16  N.  E.  825;  Williams  v.  Williams, 
125  Ind.  156,  25  N.  E.  176.  A  com- 
plaint in  an  action  to  set  aside  a 
final  settlement  alleged  that  letters 
of  administration  were  issued  to  the 
administrator  May  2d,  1887,  and  that 
he  made  his  final  settlement  Novem- 
ber 1st  of  the  same  5'ear;  that  in  his 
final  settlement  the  administrator 
represented  to  the  court  that  all 
debts  owing  by  the  estate  had  been 
paid,  and  that  he  had  in  his  hands 
for  distribution  to  the  widow  and 
heirs  a  certain  amount  of  money,  all 
of  which  he  had  properly  distributed, 
and  that  thereupon  the  court  received 
and  accepted  the  report  of  final  settle- 
ment and  discharged  the  administra- 
tor; that  at  the  time  of  the  final  set- 
tlement the  plaintiff  held  a  just  claim 
against  the  estate,  evidenced  by  a 
promissory  note,  and  that  the  plain- 
tiff intended  to  file  such  claim  within 
the  year  allowed  for  filing  claims, 
and  would  have  done  so  but  for  the 
final  settlement;  that  the  plaintiff 
did    not    appear    at    the    final    settle- 


§    322  ACCOUNTING    AND    SETTLEMENT.  525 

But  where  the  county  auditor,  acting  under  section  10340, 
Burns'  R.  S.  1908,  petitions  to  set  aside  a  final  settlement  in  order 
that  the  property  of  the  estate  may  be  subjected  to  the  payment  of 
delinquent  taxes,  his  petition  need  not  aver  that  he  did  not  ap- 
pear at  the  final  settlement  and  that  he  was  not  personally  sum- 
moned to  attend  the  same.^^ 

§  322.  Same — Party  must  show  interest. — Under  this  stat- 
ute it  is  necessary  that  a  party  seeking  the  relief  it  offers  shall  be 
interested  in  the  estate;  that  he  shall  not  have  appeared  at  the 
final  settlement  complained  of;  and,  if  not  appearing,  that  he 
shall  not  have  been  personally  summoned  to  attend  the  same. 
Such  final  settlement  cannot  be  revoked  or  reopened  by  a  creditor 
whose  claim  remains  undisposed  of,  who  appeared  at  such  settle- 
ment. He  should,  at  that  time,  have  presented  his  objections  to 
the  approval  of  the  final  report  submitted,  and  to  the  discharge 
of  the  executor  or  administrator,  setting  forth  specifically  the 
facts  regarding  his  claim ;  and  then,  on  adverse  ruling,  he  would 
have  a  remedy  by  appeal  to  the  Supreme  Court.  ^" 

ment ;  not  having  been  summoned,  authorized  to  appear  at  the  final  set- 
and  had  no  notice  that  it  would  be  tlement  made  by  appellant,  and  there- 
made.  Held,  that  the  complaint  is  by  bind  the  state,  and  as  the  latter, 
sufficient.  Shirley  v.  Thompson,  123  in  the  absence  of  a  statute  granting 
Ind.  454,  24  N.  E.  253.  such  authority,  could  not  be  sum- 
"  Graham  v.  Russell,  152  Ind.  186,  moned  to  attend  the  hearing  of  the 
52  X.  E.  806.  "It  is  a  well  settled  final  report  made  by  appellant,  there- 
rule  and  one  of  universal  application  fore  the  averments  in  the  petition  in 
that  the  state,  in  its  sovereign  ca-  respect  to  these  matters  are  not 
pacity,  can  be  sued  only  by  its  own  essential,  and  their  absence  does  not 
permission,  and  then  only  in  the  man-  render  the  pleading  insufficient  as  in 
ner,  by  which  it  has  consented  to  be  other  cases."  Graham  v.  Russell,  152 
sued.  The  state  of  Indiana  has  not,  Ind.  186,  196,  52  N.  E.  806. 
under  any  statute,  consented  that  an  ^^  Reed  v.  Reed,  44  Ind.  429;  Dill- 
administrator  or  executor  of  an  man  v.  Barber,  114  Ind.  403,  16  N. 
estate  may  bring  it  into  court  and  E.  825.  Under  .§  2925,  Burns'  R.  S. 
thereby  force  it  to  become  a  litigant  1908,  any  person  interested  in  an  es- 
at  the  hearing  of  a  final  report  in  re-  tate  which  has  been  finally  settled,  if 
spect  to  a  claim  for  taxes  against  he  was  not  personally  served  with 
such  estate.  It  is  evident,  under  the  summons,  and  did  not  appear  at  the 
circumstances,  we  think,  that  inas-  hearing  of  such  final  settlement,  may 
much  as  the  county  auditor  was  not  have  the  same  set  aside  if  it  affects 


526 


INDIANA    PROBATE    LAW. 


§  3^- 


If  the  proceedings  of  the  proper  court  in  the  settlement  of  a 
decedent's  estate  have  been  conducted  in  good  faith,  and  are  free 
from  mistake  or  fraud,  and  the  infant  defendants  to  such  final 
settlement  proceedings  have  appeared  therein  by  their  legal  guar- 
dian, or  a  guardian  ad  litem,  such  proceedings  are  final,  and  are 
not  liable  to  be  set  aside  or  annulled  by  such  infants  appearing 
upon  their  arrival  at  full  age." 

But  an  action  cannot  be  maintained  by  persons  interested  in 
the  estate,  against  the  executor  or  administrator  after  his  final 
settlement  has  been  confirmed  by  the  court  and  he  has  been  dis- 
charged, for  converting  assets  of  the  estate  to  his  own  use,  which 
were  not  included  in  his  inventory  and  accounted   for  to   the 

estate." 

Mere  mistake  or  fraud  in  a  final  settlement  is  not  enough  in 
order  to  have  it  set  aside.  The  plaintiff  must  also  be  shown  to 
have  such  an  interest  in  the  estate  as  caused  him  to  be  injured 
by  the  mistake  or  fraud  complained  of.^^ 


him  adversely,  for  any  of  the  causes 
therein  specified.  Crum  v.  Meeks, 
128  Ind.  360,  27  N.  E.  722. 

"Seward  v.  Clark,  67  Ind.  289. 

'' Carver  v.  Lewis,  104  Ind.  438,  2 
N.  E.  705.  An  allegation  by  an  heir, 
in  a  petition  to  set  aside  the  final  set- 
tlement filed  after  the  term  at  which 
the  settlement  was  approved,  that  he 
had  no  notice  by  summons,  or  other- 
wise, that  the  report  would  be  heard 
on  the  14th  day  of  February,  the  day 
finally  set  for  a  hearing,  was  not 
equivalent  to  an  allegation  that  he 
was  not  served  with  summons  to  be 
present  on  the  7th  day  of  February, 
the  day  on  which  the  report  was 
originally  set  for  hearing.  If  served 
with  process  to  be  present  on  the  7th 
day  of  February,  he  was  bound  to 
take  notice  of  the  progress  of  the 
cause,  and  further  notice  was  un- 
necessary. Williams  v.  Williams,  125 
Ind.  156,  25  N.  E.  176. 


"  Spicer  v.  Hockman,  72  Ind.  120 ; 
Potter  v.  Smith,  36  Ind.  231;  Penn- 
sylvania Co.  v.  Hensil,  70  Ind.  569, 
36  Am.  Rep.  188;  State  v.  Overturf, 
16  Ind.  261.  The  assignee  of  the 
children  of  a  decedent  cannot  main- 
tain an  action  against  the  latter's  ad- 
ministrator who  has  made  a  final  set- 
tlement and  has  been  discharged, 
while  such  settlement  remains  in 
force,  on  the  ground  that,  as  adminis- 
trator, he  failed  to  turn  over  to  him- 
self, as  guardian  of  such  children, 
their  portion  of  assets  of  the  estate, 
which  he  failed,  as  administrator,  to 
inventory  and  account  for,  because 
such  final  settlement  of  the  dece- 
dent's estate  was  an  adjudication  that 
he  had  properly  accounted  for  all 
such  assets.  Carver  v.  Lewis,  105 
Ind.  44,  2  N.  E.  714.  Upon  excep- 
tions by  a  legatee  to  a  final  settle- 
ment report  of  an  administrator 
with  the  will  annexed,  evidence  that, 


g    323  ACCOUNTING    AND    SETTLEMENT.  527 

An  unpaid  creditor  has  sufficient  interest  to  have  a  final  settle- 
ment set  aside  which  was  made  before  the  expiration  of  the 
year/" 

One  who  assails  a  final  settlement  must  show  that  the  illegal- 
ity, fraud  or  mistake  of  which  he  complains  worked  some  pecu- 
niary damage  to  him.  If  he  has  no  right  to  a  share  in  the  assets 
of  the  estate,  he  has  no  reason  to  complain." 

The  executor  or  administrator  as  such  is  a  necessary  party  to 
such  a  proceeding,  and  the  omission  to  make  him  a  party  in  his 
representative  capacity  is  good  cause  for  a  plea  in  abatement.^^ 

§  323.  Same — For  what  causes. — The  statute  requires  a 
complaint  to  set  aside  the  final  settlement  of  an  estate  to  specify 
some  illegality,  fraud,  or  mistake.  This  means  either  in  the  final 
report  of  the  executor  or  administrator  or  in  any  of  the  proceed- 
ings attendant  on  the  administration  of  the  estate.  In  an  earlier 
statute  the  word  "illegality"  did  not  appear,  and  it  was  held, 
under  that  statute,  that  it  contemplated  only  mistakes  of  fact 
and  not  errors  of  law.^^ 

XMiere  fraud  is  charged  in  such  settlement,  the  facts  constitut- 
ing the  fraud  must  be  specifically  stated.  A  mere  general  allega- 
tion of  fraud  is  insufficient.-*' 

V.  ithout  an  order  of  court  and  with-  ^'  Smith  v.  ^liller,  21  Ind.  App.  82, 

out  the  knowledge  of  the  legatee,  the  51  X.  E.  508;  Clark  v.   Schindler,  43 

adminstrator    invested    the   legacy    in  Ind.  App.  269,  87  N.  E.  44. 

bank  stock  in  his   own  name,  which  '*  Clark  v.    Schindler,  43  Ind.  App. 

stock  depreciated  in  value,  and  there-  269.  87  X.  E.  44. 

by  there  was  a  loss  of  the  portion  of  "Camper  v.  Hayeth,  10  Ind.  528; 
the  trust  fund,  and  that  he  had  paid  Reed  v.  Reed,  44  Ind.  429;  Pollard 
the  legatee  the  portion  only  which  v.  Barkley,  117  Ind.  40,  17  N.  E.  294. 
remained  after  deducting  the  loss,  ""Reed  v.  Reed,  44  Ind.  429; 
was  not  sufficient  to  sustain  a  find-  Booher  v.  Goldsborough,  44  Ind.  490. 
ing  and  judgment  confirming  the  re-  Where  an  administrator  fraudulent- 
port  and  discharging  the  administra-  ly,  by  promises  to  pay  a  creditor  of 
tor  from  his  trust  as  to  the  objecting  the  deceased,  who  is  sick,  with  no 
legatee.  Gilbert  v.  Welsch,  75  Ind.  friends  at  hand  but  the  family  of  the 
557.  See  Benson  v.  Liggett,  78  Ind.  debtor,  puts  him  off  his  guard  so 
452.  that  he  does  not  file  his  claim,  and 
'"  Shirley  v.  Thompson,  123  Ind.  then  fraudulenth-,  and  without  no- 
454,  24  N.  E.  253.  tice  to  the  creditor,  makes  final  set- 


528  INDIANA  PROBATE  LAW.  §  323 

In  a  case  based  upon  the  statute  under  consideration,  the  court 
says:  "It  is  not  the  duty  of  the  administrator  to  assist  claimants 
in  the  fihng  and  aUowance  of  their  claims,  nor  to  keep  the  estate 
open  for  the  filing  of  such  claims.  As  to  all  unfounded  or  doubt- 
ful claims,  it  is  his  duty  to  make  resistance ;  on  the  other  hand, 
as  to  bona  fide  creditors,  the  administrator  holds  the  estate  in 
trust,  and  it  is  clearly  not  his  duty,  by  any  kind  of  unfair  deal- 
ing, deceit  or  fraud,  to  defeat  the  filing  and  allowance  of  their 
claims.  To  practice  such  fraud  or  deceit,  and  thereby  prevent 
the  filing,  allowance  and  payment  of  such  claims,  is  a  clear  viola- 
tion of  duty  on  the  part  of  an  administrator.  Such  a  practice 
will  not  be  allowed  to  inure  to  his  benefit,  or  to  the  benefit  of  the 
estate  he  may  represent."  The  purpose  of  the  above  statute  is 
to  prevent  such  wrong.- ^ 

Fraud  in  the  inventory  returned  by  an  executor  or  adminis- 
trator may  affect  the  final  settlement  of  the  estate  with  fraud, 
and  will  be  good  cause  for  setting  such  settlement  aside." 

Where  a  debtor,  by  mistake,  pays  the  executor  or  adminis- 
trator more  than  he  owes  the  estate,  it  is  no  cause  for  setting -j 
aside  the  final  settlement  where  no  reason  is  shown  why  the 
mistake  was  not  discovered  before  the  settlement.  Good  policy 
requires  that  the  final  settlement  of  an  estate  should  not  be  dis- 
turbed on  account  of  alleged  mistakes,  unless  the  applicant  shows 
himself  to  have  been  reasonably  diligent." 

Allowing   the   executor   or   administrator   attorney    fees    for 

tlement  of  the  estate  and  is  dis-  v.  Reed,  69  Ind.  319;  Chase  v.  Bee- 
charged,  the  estate  being  solvent,  and  son,  92  Ind.  61. 
the  creditor  not  appearing  nor  being  ""  West  v.  Reavis,  13  Ind.  294. 
summoned,  the  creditor  may,  on  ap-  "  Crum  v.  Meeks,  128  Ind.  360,  27 
plication  stating  the  facts,  have  the  N.  E.  722.  Equity  favors  the  dili- 
final  settlement  vacated.  But  such  gent  and  will  not  afford  relief  from 
an  application  stating  facts  which  a  mistake  made  in  a  settlement  with 
merely  raise  an  inference  of  unfair  an  administrator,  to  one  who,  beside 
dealing  by  the  administrator  toward  his  negHgence  at  the  time  of  his  mis- 
the  creditor,  and  making  a  general  take,  offers  no  explanation  of  his 
charge  of  fraud,  is  not  sufficient,  failure  to  discover  it  before  the  final 
Chase  v.  Beeson,  92  Ind.  61.  settlement  of  the  estate  and  the  dis- 
^  Miller  v.  Steele,  64  Ind.  79;  Zeek  charge  of  the  administrator.    Dickey 

v.  Tvner.  85  Ind.   100. 


§    3-4  ACCOUNTING    AND    SETTLEMENT.  529 

services  performed  by  him  personally  is  good  cause  for  setting 
aside  his  final    settlement.-* 

So,  also,  is  the  settlement  of  an  estate  while  a  claim  is  pending 
undisposed  of."^ 

Mistake,  fraud  or  illegality  is  sufficient  ground  for  attacking 
a  final  settlement.  ^'^ 

If  an  administrator  by  false  representations  induces  a  creditor 
not  to  file  his  claim  and  then  makes  a  final  settlement  of  the 
estate  without  paying  such  debt,  the  settlement  may  be  set  aside 
upon  application  by  the  creditor.-^ 

The  failure  to  pay  to  the  widow  her  statutory  allowance  of  five 
hundred  dollars  is  sufficient  cause  for  setting  aside  a  final  settle- 
ment."^ 

^  324.  Same — Limitation  to  action. — An  action  which 
seeks  to  go  behind  an  executor's  or  administrator's  final  report 
will  not  lie  after  the  expiration  of  three  years  from  the  time 
such  report  is  approved  and  final  settlement  of  the  same  made."^ 
It  was  said  in  one  case:  "If  a  final  settlement  should  be  made 
without  in  some  manner  disposing  of  the  debts  against  such 
estate,  within  the  knowledge  of  the  administrator,  we  suppose, 
under  this  statute,  in  connection  with  well-known  legal  princi- 
ples, the  creditors  unsatisfied  would  be  barred  of  any  further 
action  against  such  administrator  after  three  years.  They  could 
not,  without  getting  rid  of  the  final  settlement,  proceed  in  an 
attempt  to  collect  the  claim,  even  upon  a  judgment  of  record, 
because  by  the  final  settlement  the  administrator  would  have  rid 
himself  of  all  assets  to  meet  such  debt,  and  have  been  discharged 

"-' Pollard    V.    Barkley,    117    Ind.   40,  ^' Kingan  &  Co.  v.  Hawley,  29  Ind. 

17  X.  E.  294.  App.  376,  64  N.  E.  620. 

"■"  Harter   v.    Songer,    138    Ind.    161,  "« Rush  v.  Kelley,  34  Ind.  App.  449, 

37   X.   E.   595;   Heaton  v.   Knowlton,  73  X.  E.  130. 

65   Ind.  255;   Pollard  v.   Barkley,   117  ^  State    v.    Hughes,     15     Ind.     104; 

Ind.    40,    17    X.    E.    294;    Dillman    v.  Camper  v.  Hayeth,  10  Ind.  528;  Reed 

Barber,    114   Ind.  403,    16  N.   E.  825.  v.    Reed,   44   Ind.    429;     Glessner    v. 

^'Jaap  V.  Digman,  8  Ind.  App.  509,  Clark,  140  Ind.  427,  39  N.  E.  544. 
36  X.  E.  50;  Pollard  v.  Barkley,  117 
Ind.  40,   17  X.  E.  294. 


34 — Pro.  Law. 


530  INDIANA  PROBATE  LAW.  §  325 

by  the  court  from  further  Habihty  in  reference  thereto."^"  In  an 
action  brought  by  an  administrator  de  bonis  non  against  a  for- 
mer administrator,  for  fraud  in  his  final  settlement,  an  answer 
by  such  former  administrator  that  he  had  made  a  final  settle- 
ment of  the  estate,  which  had  been  confirmed  by  the  court  and 
such  administrator  discharged,  more  than  three  years  before 
such  action  was  begun,  is  good  in  bar  of  the  action. ^^ 

The  action  provided  for  by  this  statute  must  be  begun  within 
three  years  after  the  final  settlement  is  made,  unless  the  person 
interested  is  under  some  legal  disability  at  the  time  of  such  set- 
tlement. And  such  final  settlement  cannot  be  set  aside  even  in  a 
direct  proceeding  for  that  purpose,  unless  the  action  is  brought 
within  the  three  years  fixed  by  this  statute.  No  other  statute  of 
limitations  applies  to  such  actions.^' 

As  the  court  says,  "there  may  be  cases  where  to  apply  the 
doctrine  of  res  adjudicata,  and  the  limit  fixed  by  the  statute 
within  which  final  settlements  may  be  set  aside,  may  work  a 
hardship,  but  doubtless  such  cases  will  be  very  few  in  comparison 
with  the  wrongs  that  would  result  from  an  opposite  doctrine  and 
a  statute  fixing  a  much  longer,  or  no  limit. "^^ 

§  325.    Same — Only  set  aside  in  direct  proceeding. — The 

final  settlement  of  an  executor  or  administrator  can  be  set  aside 
or  opened  up  only  by  a  direct  proceeding  for  that  purpose.  It 
cannot  be  attacked  in  a  suit  on  his  bond,  or  by  a  suit  against  him 
personally,  or  in  any  other  collateral  manner;  and  the  orders  of 
the  court  confirming  such  final  settlement  and  discharging  the 
executor  or  administrator,  constitute  an  adjudication  of  the 
matters  to  which  they  relate,  in  the  same  manner  as  ordinary 
judgments  in  a  court  of  record,  and  if  attacked  must  be  by  some 
direct  proceeding  in  the  court  having  control  over  them.^* 

=°  Beard  V.  First  Presby.  Church,  15  Ind.    445.    14    N.    E.   388;    Carver   v. 

Ind.    490;    Vestal   v.    Allen,    94    Ind.  Lewis,  105  Ind.  44,  2  N.  E.  714. 

268.  '=' Carver  v.   Lewis,  104  Ind.  438,  2 

"Sanders  v.   Loy,  61   Ind.  298.  N.    E.   705;    Spicer    v.    Hockman,    12 

''Carver  v.  Lewis,  104  Ind.  438,  2  Ind.    120;    Horton    v.    Hastings,    128 

N.    E.    705;    Castetter   v.    State,    112  Ind.   103,  27  N.  E.  338. 

=' Barnes    v.    Bartlett,    47    Ind.    98; 


§    2,2=)2i  ACCOUNTING    AND    SETTLEMENT.  53 1 

So  long  as  such  settlement  remains  in  force  it  is  binding  on 
everybody.  It  has  the  force  and  effect  of  a  final  judgment,^^ 
and  precludes  all  collateral  inquiry  into  its  correctness  by  parties 
interested  therein  who  were  duly  notified  so  long  as  such  judg- 
ment remains  in  force.  ^'^ 

But  it  is  an  adjudication  so  far  only  as  it  rests  upon  matters 
properly  embraced  within  the  report  relative  to  the  proper  man- 
agement and  settlement  of  the  estate. ^^ 

An  appeal  taken  from  a  judgment  in  a  proceeding  to  set  aside 
or  reopen  the  final  settlement  of  an  executor  or  administrator, 
is  not  governed  by  the  provisions  of  the  code  of  procedure  on 
appeals  in  civil  cases,  but  such  appeal  must  be  taken  in  accord- 
ance with  the  provisions  of  the  act  relating  to  the  settlement  of 
decedents'  estates  upon  the  subject  of  appeals.^^ 

§  325a.  Accounting  by  trustees  under  benevolent  devise. 
— That,  whenever  property  or  money  is  willed  or  donated  for 
benevolent  public  purposes,  that  it  shall  be  the  duty  of  the  trus- 
tees of  such  property  or  money,  incorporated  or  otherwise,  to 
make  a  sworn  report  once  a  year  to  the  circuit  court  of  the 
county  in  which  such  property  or  money  is  to  be  appropriated 

Holland  v.    State,  48   Ind.  391 ;    Par-  by  it.  and  cannot  maintain  an  action 

sons  V.   Milford,   67   Ind.   489;    Lang  against   the   discharged   administrator 

V.    State.    67    Ind.    577;    Peacocke    v.  upon  the  ground  that  he  converted  to 

Leffler,   74  Ind.  327;   Pate  v.  Moore,  his    own    use    assets    of    the    estate 

79  Ind.  20.  which    he    should    have    included    in 

"Carver  v.   Lewis,   104  Ind.  438,  2  the   inventory  and   accounted    for  to 

N.  E.  705 ;  Carver  v.  Lewis,  105  Ind.  the  estate,  and  that  such  final  settle- 

44,  2  N.  E.  714.  ment  cannot  be  set  aside  after  three 

^^Jaap  V.  Digman,  8  Ind.  App.  509,  years  subsequent  thereto."     Carver  v. 

36  N.  E.  50;  Pate  v.  Moore,  79  Ind.  Lewis,    104    Ind.    438,    2    N.    E.    705. 

20.      "The    holding   of   our    cases    is,  Sanders  v.  Lo}^,  61  Ind.  298;   Candy 

that  the  approval  of  the  final  settle-  v.    Hanmore,    76    Ind.    125;    Reed    v. 

ment    account,    and    the    final    settle-  Reed,  44   Ind.   429;   Vestal   v.   Allen, 

ment    of    the    estate    by    the    probate  94  Ind.  268. 

court,     are    an    adjudication    of    all  "Jaap  v.  Digman,  8  Ind.  App.  509, 

questions     involved     and     cannot    be  36  N.   E.   50;   Wainwright  v.    Smith, 

assailed    in    a    collateral    attack,    and  106  Ind.  239,  6  N.  E.  333. 

that  so  long  as  such  final  settlement  '^Webb   v.    Simpson,    105   Ind.   327, 

stands,   interested   parties   are  bound  4  X.  E.  900.     See  Chapter  20. 


532  INDIANA  PROBATE  LAW.  §  325a 

according  to  the  purposes  of  the  donors;  of  the  condition  of  such 
property  or  money,  and  how  said  money  is  invested,  and  the 
security  for  the  same,  and  if  the  rents  or  interest  of  said  property 
or  money  has  been  expended  in  accordance  with  the  purposes  of 
the  donor;  and  said  report  is  to  bear  the  signature  of  all  the 
trustees  having  charge  of  such  property  or  money  where  such 
trustees  reside;  and  upon  failure  of  the  trustees  to  make  such 
sworn  report,  they  are  each  to  be  subject  to  a  fine  of  not  less  than 
fifty  ($50)  dollars.^^ 

It  shall  be  the  duty  of  the  judge  of  the  circuit  court  of  the 
county  in  which  such  trustees  reside,  to  approve  said  report,  and 
to  see  that  the  conditions  of  the  donor  of  money  for  benevolent 
purposes  be  carried  out  according  to  the  purposes  of  the  donor ; 
and  if  such  trustees  fail  in  any  one  year  to  render  such  report, 
the  judge  shall  issue  an  order  compelling  them  to  appear  and 
show  cause  why  they  did  not  report,  and  all  costs  accruing  in 
such  cases,  are  to  be  paid  by  said  trustees.'*"' 

■'"'Burns'  R.  S.  1908,  §  3173.  **> Burns'   R.   S.   1908,   §  3174. 


CHAPTER  XIV. 


DISTRIBUTION — PAYMENT  OF  LEGACIES — DISCHARGE. 


§  326. 

328. 

329. 
330. 

331. 

332. 
m. 
334. 
335. 

336. 
2>Z1. 

338. 

339. 

340. 


Closing   the   administration. 

What  shall  be  distributed. 

When  distribution  shall  be 
made. 

Distribution  to  the  widow. 

The  rights  of  heirs  or  dis- 
tributees. 

Right  of  set-off  to  legacies 
and    distributive    shares. 

The   rules  of   distribution. 

Distribution    to    the    widower. 

Kindred  of  the  half-blood. 

Illegitimates,  and  adopted  chil- 
dren. 

Charging  advancements. 

Advancements,  how  reckoned, 
the  statute. 

Advancements  in  testate 
estates. 

As  to  the  order  of  distribu- 
tion. 

As  to  shares  of  minors  with- 
out guardian. 


§  341.  Court   may   order  bond   to   re- 
fund. 

342.  Payment    before    final    settle- 

ment. 

343.  The  payment  of  legacies. 
344.  Legatee's        title  —  Executor's 

consent. 

345.  As  to  void  and  lapsed  legacies. 

346.  Different   kinds    of    legacies. 

347.  Out  of  what  fund  legacies  to 

be  paid. 

348.  Interest   on    legacies. 

349.  Ademption  and  satisfaction  of 

legacies. 

350.  Legacy  to   creditor. 

351.  When   legatee   a   minor — Exec- 

utor cannot  purchase. 

352.  The  order   of   discharge. 

353.  Distribution  of  real   estate  of 

unknown  heirs. 

354.  Same  —  Xotice  —  Appearance 

— Disposition  of  money,  etc. 

355.  Same — A  species  of  escheat. 


§  326.  Closing  the  administration. — The  final  settlement 
of  an  estate  by  the  executor  or  administrator  is  not  complete  until 
the  surplus,  if  any,  in  hand,  after  payment  of  all  debts  and  liabil- 
ities, has  been  paid  to  the  legatees  and  distributees.  The  residue 
of  the  estate  must  be  distributed  among  those  entitled  to  it  ac- 
cording to  law  and  under  direction  of  the  court,  before  the  execu- 
tor or  administrator  is  entitled  to  a  discharge  from  his  trust. 
Distribution  to  those  entitled  thereto,  and  the  payment  of  all  leg- 

533 


534  INDIANA  PROBATE  LAW,  §  326 

acies,  is  essential  to  a  complete  administration,  and  an  estate  can- 
not be  legally  closed  until  this  has  been  done/ 

The  balance  in  hand,  upon  an  accounting  in  final  settlement  of 
an  estate,  must  be  paid  out  under  the  personal  supervision  of  the 
administrator  or  executor  upon  a  proper  order  of  court,  or  it  may 
be  paid  into  court  to  be  distributed  by  the  clerk.  The  effect  is  the 
same — whether  the  fund  be  retained  by  the  administrator  and 
paid  out  by  him,  or  whether  it  is  paid  by  him  to  the  clerk  of  the 
court.  The  term  "final  settlement"  comprehends  a  payment  of 
the  balance  in  the  administrator's  hands  so  as  to  leave  nothing 
to  be  done  to  complete  the  trust.  The  order  of  distribution  is, 
however,  as  much  a  part  of  the  final  settlement,  where  the  fund 
is  in  the  hands  of  the  clerk,  as  where  it  is  retained  by  the  admin- 
istrator. In  the  sense  in  which  the  term  distribution  is  used  in 
this  connection  it  has  reference  to  the  personal  property  and 
money  arising  from  the  sale  of  real  estate,  and  its  payment  to  the 
heirs  after  the  payment  of  the  debts  and  legacies." 

The  order  of  distribution  is  a  judicial  ascertainment  of  the 
right  of  the  next  of  kin  and  legatees  to  their  respective  shares  of 
the  estate,  and  if  the  notice  required  by  law  has  been  given  of 
the  presentation  of  the  final  account  and  all  parties  interested  are 
before  the  court,  such  order  is  final  and  conclusive  whether  the 
interested  parties  appear  or  not,  or  whether  under  disability  or 
not.^ 

To  be  in  proper  form  the  order  of  distribution  should  set  out 
the  name  of  each  person  entitled,  and  also  the  sum  or  amount  due 
each,  and  in  case  of  a  specific  legacy  the  particular  thing  due;* 
and  if  an  infant  is  a  distributee  or  legatee  the  order  should  be  to 

'Mefiford  v.  Lamkin,  38  Ind.  App.  Lamkin,   38   Ind.   App.   33,  76  N.   E. 

33,   76   N.    E.    1024,   77   N.   E.   960;  1024,  77  N.  E.  960. 

Sherwood    v.    Thomasson,    124    Ind.  '  Glessner    v.    Clark,    140    Ind.    427, 

541,  24  N.  E.  334;  Martin  v.  EUerbe,  39    N.    E.    544;    Bresee   v.    Stiles,   22 

70  Ala.  326.  Wis.    120;    State  v.    Blake,  69   Conn. 

"Beard  v.   Lofton,   102  Ind.  408,  2  64,  36  Atl.  1019;  Goad  v.  Montgom- 

N.    E.    129;    Dufour    v.    Dufour,    28  cry,  119  Cal.  552,  51  Pac.  681,  63  Am. 

Ind.    421;    Jones    v.    Jones,    115    Ind.  St.  145;  Ladd  v.  Weiskopf,  62  Minn, 

504,   18   N.   E.  20 ;   Carver  v.   Lewis,  29,  64  N.  W.  99,  69  L.  R.  A.  785. 

105  Ind.  44,  2  N.  E.  714;  Mefford  v.  *  Sankey   v.    Sankey,    8    Ala.    601; 


§    326  DISTRIBUTION LEGACIES DISCHARGE.  535 

such  infant  and  not  to  the  guardian,  although  a  legal  guardian 
may  legally  discharge  the  administrator  or  executor  by  receipting 
for  the  amount  due  his  ward.' 

The  order  or  decree  of  distribution  should  be  a  final  and  abso- 
lute disposition  of  the  funds  in  the  hands  of  the  executor  or  ad- 
ministrator and  should  not  be  made  to  depend  on  any  possible 
contingency  in  the  future,  or  upon  any  question  affecting  the 
distribution  remaining  open  and  unsettled.^  For  the  effect  of  the 
decree  is  to  vest  the  title  to  the  share  in  the  distributee,  and  the 
court  loses  jurisdiction  over  the  property  and  therefore  cannot 
subsequently  make  a  different  disposition  of  the  property.' 

An  order  of  distribution  and  discharge  procured  by  an  admm- 
istrator  or  executor  while  there  is  a  claim  unallowed  pending 
against  the  estate,  or  some  demand  outstanding  unpaid,  or  before 
the  expiration  of  the  time  for  filing  claims,  is  invalid,  and  may 
be  set  aside,  or  such  officer  held  liable.^ 

When  a  final  settlement  account  shall  have  been  filed,  and 
notice  given  to  the  heirs,  devisees  and  legatees  to  prove  their 
claims  to  the  surplus,  as  hereinbefore  provided,  they  shall  appear 
before  the  court,  in  person  or  by  attorney,  and  in  case  of  infants 
and  persons  of  unsound  mind,  by  their  guardians,  and  make  proof 
of  their  heirship,  or  other  title  to  such  surplus.** 

The  notice  to  be  given,  referred  to  in  this  statute,  is  as  fol- 
lows:  "If  the  account  is  filed  for  final  settlement,  the  notice  shall 
also  require  the  heirs  of  the  decedent,  and  all  others  interested,  to 
appear  and  make  proof  of  their  heirship  or  claim  to  any  part  of 
said  estate."''  And  if  such  notice  has  been  given,  however  defect- 
Roberts  V.  Dale,  7  B.  Mon.  (Ky.)  Schmidt  v.  Stark,  61  Minn.  91,  63  N. 
199;   Grant  v.  Bodwell,  78  Me.  460,     W.   255.  ,,,,.,  ,. 

7   ^^j    j2  -Prefontaine      v.      McMicken,      16 

^  State    V.    Burkam,    23    Ind.    App.     Wash.   16,  47  Pac.  231. 
271    55  X    E   237;  Sankey  v.  Sankey,        'Shirley    v.    Thompson,     123    Ind. 
6  Ala.   607;    Henry   v.    State,  9   Mo.     454,  24  N.  E.  253;  Whitney  v^Piney, 


778 


51  Minn.  146,  Si  N.  W.  198;  Browne 


Cummings      v.      Cummings,      143  v.  Doolittle,  151  Mass.  595,  25  N.  E. 

Mass    340,  9  N.   E.  730;   Merrick  v.  23. 

Kennedy   46  Neb.  264,  64  N.  W.  989 ;  "  Burns'  R.  S.  1908,  §  2928. 

Ham  V.'  Kornegay,  85  N.   Car.   119;  ^"  Ante,  §  304. 


53^  INDIANA    PROBATE    LAW.  §    327 

ively,  and  the  court  having  jurisdiction  of  the  subject-matter  of 
the  proceeding  has  held  the  notice  to  have  been  sufficient,  the 
judgment  rendered  by  such  court  upon  a  final  settlement  account 
and  ordering  distribution  of  the  surplus,  cannot  be  attacked  col- 
laterally, either  upon  the  ground  that  there  was  no  notice,  or  that 
the  notice  was  fatally  defective. ^^ 

To  protect  the  administrator  notice  is  essential,  and  it  should 
be  such  notice  as  the  statute  prescribes/' 

§  327.  What  shall  be  distributed. — After  the  payment  by 
the  executor  or  administrator  of  all  the  debts  and  liabilities  of 
the  estate,  the  property,  if  any,  remaining  in  his  hands  belongs 
to  the  heirs  or  legatees  of  the  decedent.  In  one  case  such  fund 
is  held  for  distribution  to  the  heirs  or  next  of  kin  of  the  intestate, 
in  the  other  it  is  to  be  paid  in  form  of  legacies  to  those  named  by 
the  will  to  receive  it.  In  both  cases  such  surplus  in  his  hands  is 
personal  property  and  is  governed  in  its  distribution  by  the  rules 
of  law  governing  that  species  of  property. 

Personal  property  is  subject  to  the  law  which  governs  the 
person  of  the  owner.  Kent  lays  down  the  following  as  the  rule : 
"It  has  become  a  settled  principle  of  international  jurisprudence, 
and  one  founded  on  a  comprehensive  and  enlightened  sense  of 
public  policy  and  convenience,  that  the  disposition,  succession  to 
and  distribution  of  personal  property,  wherever  situated,  is  gov- 
erned by  the  law  of  the  counti-y  of  the  owner  or  intestate's  dom- 
icile, at  the  time  of  his  death,  and  not  by  the  conflicting  laws  of 
the  various  places  where  the  goods  happened  to  be  situated. "^^ 

This  rule  of  law  is,  in  fact,  so  well  settled,  that  none  longer 
dare  dispute  it.^* 

In  the  sense  of  the  statute,  and  in  the  sense  in  which  the  term 
is  generally  used,  the  distribution  of  an  estate  has  reference  to 

"Jones   V.  Jones,    115   Ind.   504,    18  "2  Kent.  429. 

N.  E.  20;  Kleyla  V.  Haskett,  112  Ind.  '"Irving     v.     McLean,     4     Blackf. 

515,  14  N.  E.  387.  (Ind.)    52;    McClerry    v.    Matson,    2 

'=Oakes  v.  Buckley,  49  Wis.  592,  6  Ind.   79;   Warren   v.   Hofer.    13   Ind. 

N.   W.  321;   Long  v.   Thompson,  60  167. 
III.  27. 


§    3^7  DISTRIBUTION LEGACIES DISCHARGE.  537 

the  division  and  apportionment  of  the  personal  property  and 
money  arising  from  the  sale  of  real  estate  by  the  administrator 
among"  the  heirs  of  the  decedent  after  the  payment  of  all  the 
debts  and  legacies.  Where  there  is  no  will,  the  land  is  not  dis- 
tributed, but  descends  directly  to  the  heirs.  Nor  where  there  is 
a  will  are  the  lands  distributed  in  the  statutorv-  and  ordinary 
sense,  but  its  descent  is  controlled  by  the  will.  In  the  absence  of 
anything  to  the  contrary,  it  will  be  presumed  that  the  word  "dis- 
tribution" is  used  in  the  statutory  and  ordinary  sense.^^ 

The  administrator  of  an  estate  is  a  trustee  for  the  person  or 
persons  entitled  by  law  to  a  distributive  share  of  that  estate,  and 
such  trust  is  a  direct  one.^" 

Land  which  has  been  sold  by  an  executor  or  administrator,  the 
proceeds  of  which  remain  in  his  hands  at  final  settlement  is,  in 
its  distribution,  treated  as  personal  property. 

Where  a  testator  by  his  will  expressly  authorizes  his  executors 
to  sell  his  real  estate  and  divide  the  proceeds  among  his  children 
and  heirs,  it  is,  in  effect,  a  conversion  of  the  land  into  personal 
property,  and  it  must  be  considered  and  treated  as  money,  and  its 
distribution  is  governed  by  the  same  rules  as  if  the  donation,  in 
the  first  instance,  had  been  money."  And  where  the  land  has 
been  sold  in  the  lifetime  of  an  intestate,  the  proceeds,  whether 
secured  by  note  or  otherwise,  become  assets  in  the  hands  of  his 
administrator,  and  without  reference  to  the  source  whence  de- 
rived are  governed,  in  their  distribution,  by  the  rules  prescribed 
for  the  descent  of  personal  property.^® 

"Beard  v.  Lofton,   102  Ind.  408,  2  the    widow    and    children,     if     there 

X.   E.   129.  were  any.     Statutes  were  afterwards 

"  Smith     V.     Calloway,     7     Blackf.  passed  which   provided  in  detail  for 

(Ind.)     86;    Nugent    v.    Laduke,    87  the  distribution  of  the  surplus  of  all 

Ind.    482;    Raugh    v.    Weis,    138   Ind.  estates.      Enactments    of    this    char- 

42,  Zl  N.  E.  331.     "Anciently  the  ad-  acter    are    found    in    all    the    states." 

ministrator   or   ordinary,   in   right   of  Sherwood    v.    Thomasson,    124    Ind. 

the    king,    himself    appropriated    the  541,  24  X.  E.  334. 
residue  of  an  intestate's  estate,  after        "Rumsey  v.  Durham,  5  Ind.  71. 
payment    of    the    debts,    assuming   to        '^  Henson     v.     Ott,     7     Ind.     512; 

devote  certain  portions  to  pious  uses,  Cooper  v.  Cooper,  21  Ind.  124. 
and  to  give  certain  other  portions  to 


538  INDIANA  PROBATE  LAW.  §  328 

The  statute  makes  this  one  distinction,  however,  as  to  the  sur- 
plus arising  from  the  sale  of  lands,  where  it  provides  that  on  the 
final  distribution,  it  shall  be  distributed  to  those  to  whom  the  land 
itself  would  have  descended,  or  passed  under  the  will.^'' 

But  a  testator  cannot  change  realty  to  personal  estate  by  a 
mere  declaration  in  his  will  that  it  shall  be  one  or  the  other.  The 
fiction  of  constructive  conversion  rests  on  the  proposition  that  in 
the  absence  of  intervening  interests  or  rights,  the  testator's  in- 
tention so  far  as  it  affects  the  beneficiary  will  control.  But  the 
doctrine  is  qualified  to  this  extent  that  the  conversion  does  not 
take  place  until  the  event  transpires  when  the  conversion  should 
be  made.*° 

One  prominent  author  says :  'Tn  connection  with  this  subject 
it  must  be  remembered  that,  for  the  purposes  of  succession,  prop- 
erty converted  retains  the  character  it  had  at  the  time  of  the 
owner's  death;  hence  the  surplus  of  the  proceeds  of  lands  sold 
for  the  payment  of  debts,  either  under  a  power  given  by  will,  or 
by  order  of  the  probate  court,  not  needed  for  the  purpose  of  the 
sale,  goes  to  the  persons  to  whom  the  real  estate  would  have  gone 
if  not  converted.  It  goes,  however,  as  personalty,  that  is,  the  con- 
version becomes  complete  when  it  reaches  the  one  who  is  entitled 
to  it;  and  if  he  dies  before  coming  into  actual  possession,  it  will 
pass  to  his  personal  representative  and  not  to  his  heir."-^ 

§  328.  When  distribution  shall  be  made. — When  the  de- 
ceased shall  have  died  intestate,  the  surplus  of  his  estate  remain- 
ing in  the  hands  of  the  executor  or  administrator  after  the  pay- 
ment of  debts  and  expenses  of  administration  (and  in  case  the 
deceased  shall  have  died  testate,  after  the  payment  of  legacies 
also)  shall  be  distributed  to  the  legal  heirs  of  the  deceased  accord- 

"  Burns'  R.  S.  1908,  §  2927.     In  the  maining  after  the   payment  of  debts 

absence    of    a    showing   to    the    con-  and   legacies.     Beard  v.   Lofton,    102 

trary,    it    will   be   presumed   that  the  Ind.  408,  2  N.  E.  129. 

word  "distribution"  was  used  in  the  ""  Comer  v.  Light,  —  Ind.  — ,  93  N. 

statutory    and    ordinary    sense    with  E.  666. 

reference    to    the    personal    property  ^  Woerner    Am.     Law     Admin.,     § 

and  money  arising  from  the  sale  of  562 ;   Walling  v.   Scott,  —  Ind.   App. 

-real  estate  by  the   administrator,   re-  — ,  96  N.  E.  481. 


§    328  DISTRIBUTION LEGACIES DISCHARGE.  539 

ine  to  the  laws  of  this  state  in  force  at  the  time  of  his  death,  un- 
less  he  was,  at  the  time  of  his  death,  an  inhabitant  of  another 
state ;  in  which  case  the  surplus  arising  from  the  personal  estate 
of  the  decedent  shall  be  distributed  according  to  the  laws  cf  that 
state;  or,  if  administration  of  his  estate  be  pending  in  such  for- 
eign state,  such  surplus  may,  under  the  order  of  the  court,  be 
paid  over  to  the  executor  or  administrator  appointed  in  such  for- 
eign state.  If  any  part  of  such  surplus  shall  have  been  derived 
from  the  sale  of  the  decedent's  real  estate  by  the  executor  or  ad- 
ministrator for  the  payment  of  debts  or  legacies,  such  part  shall 
be  distributed  to  the  heirs  or  devisees  to  whom  the  real  estate  de- 
scended or  was  devised,  according  to  their  respective  interests 
therein  by  descent  or  under  the  will.^^ 

There  can  be  no  final  settlement  of  an  estate  or  distribution 
of  the  surplus  until  after  the  expiration  of  one  year  from  the  time 
of  the  appointment  of  an  executor  or  administrator. 

The  statute  provides  for  the  distribution  of  the  surplus  remain- 
ing after  the  payment  of  all  debts.  And  as  the  creditor  of  a  de- 
cedent is  allowed  a  full  year  in  which  to  present  and  file  his  claim, 
and  as  there  can  be  no  final  settlement  until  the  end  of  one  year, 
it  would  seem  to  follow  that  there  can  be  no  distribution  of  the 
assets  of  the  estate  to  the  legal  heirs  of  the  decedent,  until  after 
the  expiration  of  one  year  from  the  first  issue  of  letters  thereon, 
and  notice  thereof  given.  And  any  executor  or  administrator 
who  makes  a  distribution  of  the  assets  of  his  decedent's  estate 
before  the  expiration  of  that  time  misapplies  to  that  extent  the 
funds  of  the  estate,  and  will  be  held  liable  for  the  full  amount 
thereof  to  any  creditor  or  other  person  interested  in  the  due  ad- 
ministration of  the  estate  who  is  injured  by  such  misapplication. 
The  same  rule  also  applies  to  any  distributee,  who,  with   full 

=^  Burns'  R.  S.  1908,  §  2927.  The  13  Ind.  167.  When  a  will  gives  the 
personal  estate  of  a  decedent,  no  executor  control  of  the  estate^  de- 
matter  where  situate,  is  to  be  dis-  vised  to  minors  during  their  minor- 
tributed  in  accordance  with  the  laws  ity,  the  guardian  of  such  minors  is 
of  the  state  where  the  decedent  re-  not  entitled  to  the  possession  of  such 
sided  at  his  death.  McClerry^  v.  Mat-  estate.  Branch  v.  Holcraft,  14  Ind. 
son,  2  Ind.  79;  Thieband  v.  Sebas-  237;  Reed  v.  Bishop,  —  Ind.  App.  — , 
tian,   10   Ind.  454;   Warren  v.  Hofer,  97  N.  E.  1023. 


540  INDIANA  PROBATE  LAW.  §  329 

knowledge  of  all  the  facts,  receives  his  full  distributive  share  of 
such  estate  before  the  end  of  one  year,-^ 

Stock  in  a  corporation  which  remains  unsold  in  the  hands  of 
an  executor  or  administrator  shall  be  distributed  to  the  heirs  or 
legatees  and  duly  transferred  to  them  under  the  direction  of  the 
court.^* 

§  329.  Distribution  to  the  widow. — The  statutory  allow- 
ance made  to  a  widow  constitutes  no  part  of  the  surplus  remain- 
ing, after  the  payment  of  debts,  in  the  hands  of  an  executor  or 
administrator  for  distribution,  and  should  not  be  by  him  taken 
into  account  in  making  such  distribution. ^°  The  widow  is  entitled 
to  one-third  of  the  remaining  surplus  in  the  hands  of  an  executor 
or  administrator  as  her  distributive  share  of  her  deceased  hus- 
band's estate,  aside  from  the  statutor}^  allowance  awarded  her. 

This  is  the  rule  in  testate  estates  only  and  is  probably  modified 
by  the  first  proviso  of  the  section-''  in  which  it  is  found  to  har- 
monize it  with  the  provisions  in  intestate  estates  found  in  sections 
3018  and  3027,  Bums'  R.  S.  1908. 

And  prior  to  1891,  in  case  the  husband  died  testate,  the  widow, 
as  to  the  distribution  of  his  personal  estate,  was  governed  entirely 
by  the  terms  of  her  husband's  will ;  but  the  legislature,  by  an  act 
approved  March  9,  1891,  conferred  upon  the  widow  in  such  cases 
the  right  to  elect  as  to  the  personal  property  of  her  husband, 
whether  to  take  under  his  will  or  under  the  law,  as  she  is  required 
now  to  do  in  reference  to  real  estate,  and  giving  her  one-third  of 
the  personal  estate  whether  the  husband  should  die  testate  or  in- 
testate. The  act  reads  as  follows :  "If  a  man  die  testate,  leaving 
a  widow,  one-third  of  his  personal  estate  shall  descend  to  said 
widow,  subject,  however,  to  its  proportion  of  the  debts  of  said 
decedent :  Provided,  however.  That  nothing  in  this  act  shall  be 
construed  to  reduce  the  interest  which  the  law  now  gives  a  widow 
in  the  estate  of  a  deceased  husband ;  And  provided  further.  That 
such  widow  may  elect  to  take  under  the  will  of  said  decedent  in- 

'' Fleece  v.  Jones,  71  Ind.  340.  =*  Hays  v.  Buffington,  2  Ind.  369. 

=^  Burns'  R.  S.  1908,  §  2796.  =«  Burns'  R.  S.  1908,  §  3025. 


§    329  DISTRIBUTIOX LEGACIES DISCHARGE.  54I 

Stead  of  this  or  any  other  law  of  descent  of  this  state,  which 
election  shall  be  made  within  ninety  days  after  said  will  has  been 
admitted  to  probate  in  this  state,  and  in  the  same  manner  as 
widows  are  now  required  by  law  to  elect.'"'' 

This  section  of  the  statute  is  now  modified  as  to  the  time  when 
an  election  shall  be  made  by  the  act  of  1907,  page  -j^,  in  so  far  at 
least  as  to  all  cases  where  the  decedent  died  after  the  taking  effect 
of  the  latter  act. 

In  intestate  estates  the  widow  is  now  given  one-half  of  the  per- 
sonal property  of  her  deceased  husband  where  there  is  but  one 
child  ;^^  and  if  he  leaves  no  child,  and  the  value  of  all  his  prop- 
erty, real  and  personal,  exceeds  one  thousand  dollars,  she  is 
^iven  three-fourths  if  the  husband  leaves  a  father  or  mother  or 
both  surviving,-^  otherwise  she  is  entitled  to  all.^^ 

These  statutes,  so  far  as  the  deceased  husband's  personal  estate 
is  concerned,  apply  only  on  final  distribution,  and  to  whatever 
surplus  remains  after  the  payment  of  debts  and  liabilities.  The 
widow  takes  nothing  in  the  personal  estate  as  against  creditors 
except  her  statutory  allowance  of  five  hundred  dollars."^ 

\Mien  her  relation  is  established,  her  right  to  participate  in  the 
fund  to  an  amount  fixed  by  law  is  absolute,  unless  that  right  has 
been  forfeited  by  her  misconduct,  or  unless  some  equitable  set- 
off sufticient  to  discharge  the  amount  can  be  established. ^- 

And  so  far  as  a  decedent's  personal  property  is  concerned,  the 
statute  makes  no  distinction  between  the  widow  of  a  first  or  any 
subsequent  marriage.^^  Her  right  in  the  property  of  her  de- 
ceased husband  must  be  determined  by  the  law  in  force  at  the 
time  of  his  death. ^* 

Where  a  wife  dies  leaving  no  statutory-  heirs  living,  her  dis- 

=^  Burns'  R.  S.  1908,  §  3025.  not    negative    any    of    the    provisions 

-'Burns'  R.  S.  1908,  §  3018.  of  the  statute  which  in  certain  con- 

^  Burns'  R.  S.  1908,  §  3027.  tingencies    deprive    her    of    some    in- 

'' Burns'  R.  S.  1908,  §  3028.  terest   in    such    estate.     Sherwood   v. 

^  Roberts  v.  Dimmett,  45  Ind.  App.  Thomasson,    124   Ind.   541,  24   N.   E. 

566,  88  N.  E.  870.  334. 

'-  In  an  application  by  a  widow  for  '^  Sigler  v.   Hooker,  30  Ind.  386. 

a  distribution  to  her  of  her  share  of  "  Leib  v.  Wilson,  51   Ind.  550. 

the  estate  of  her  husband,   she  need 


542  INDIANA  PROBATE  LAW.  §  33O 

tributive  share  or  interest  in  an  estate  in  process  of  settlement  at 
the  time  of  her  death  will  pass  to  her  husband.^^ 

The  widow  of  a  decedent  is  a  comi>etent  witness  on  an  applica- 
tion for  the  distribution  of  the  surplus  in  the  hands  of  an  ex- 
ecutor or  administrator.^"  A  claim  for  a  distributive  share  of  the 
surplus  of  an  estate  is  not  a  claim  against  the  estate  in  the  ac- 
cepted meaning  of  that  term,  and  the  evidence  of  the  claimant  is 
properly  admissible." 

If  a  widow  remarries  before  receiving  her  distributive  share 
of  the  estate  of  her  deceased  husband  her  right  to  such  share  is 
not  thereby  barred,  and  her  share  is  to  be  determined  by  the 
amount  of  property  in  her  husband's  possession  at  the  time  of  his 
death,  and  is  not  to  be  affected  by  any  advancements  made  by  him 
to  his  children  during  life;  nor  is  her  interest  to  be  charged  with 
any  accountability  for  property  she  may  have  received  frgm  her 
husband  before  his  death. ^* 

§  330.  The  rights  of  heirs  or  distributees. — The  personal 
estate  of  a  decedent  is  subject  to  the  laws  of  descent  and  the  title 
thereto  is  cast  upon  his  heirs  subject  only  to  the  payment  of  his 
debts,  and  they  are  entitled  to  its  possession  subject  only  to 
right  of  the  personal  representatives  of  such  decedent  to  apply  it 
in  the  payment  of  debts.  If  a  decedent  was  not  indebted  at  the 
time  of  his  death,  his  heirs,  by  agreement  among  themselves, 
could  make  a  distribution  of  his  estate  and  thus  avoid  the  appoint- 
ment of  an  administrator.^^ 

''  Pickens  v.  Hill,  30  Ind.  269.  Salter  v.    Salter,  98  Ind.   522 ;   Holz- 

'"  Sherwood  v.  Thomasson,  124  Ind.  man  v.   Hibben,   100  Ind.  338;   Hum- 

541,  24  N.  E.  334.  phries  v.   Davis,    100  Ind.  369.     The 

"  Shaffer    v.    Richardson,     27     Ind.  right   of   heirs   to  participate   equally 

122;   Hamlyn  v.   Nesbit,  37  Ind.  284.  in  the  estate  of  their  ancestor  is  su- 

'*  Foster  v.  Fifield,  20  Pick.  (Mass.)  perior  to   that   of   a  lien-holder  with 

67;  Ralston  v.  Thornton,  36  Ga.  546;  notice.     Foltz  v.  Wert,  103  Ind.  404, 

In  re,  Morgan,  104  N.  Y.  74,  9  N.  E.  2   N.   E.   950 ;   Fiscus   v.    Moore,   121 

861:    Barnes   v.    Allen,   25   Ind.   222;  Ind.   547,  23   N.   E.  362,  7  L.   R.  A. 

Ruch  V.  Biery,  110  Ind.  444,  11  N.  E.  235.     The   law   favors  an   equal   dis- 

^12.  tribution    of    an    estate    among    the 

''Martin    v.    Reed,     30     Ind.     218;  children  of  the  deceased  owner;  and 

Mitchell    V.    Dickson,    53    Ind.    110;  it  favors  a  distribution  between  near 


330 


DISTRIBUTION LEGACIES DISCHARGE. 


545 


Before  final  settlement  of  an  estate  and  distribution,  the  heirs 
cannot  maintain  a  suit  to  recover,  from  a  third  person,  property 
belonging  to  the  estate ;  such  third  person  is  liable  to  account  for 
such  property  only  to  the  executor  or  administrator  of  the  estate, 
and  he  is  the  proper  party  to  sue/^ 

The  unascertained  distributive  shares  of  a  decedent's  estate 
in  the  hands  of  his  personal  representatives  are  "effects"  within 
the  meaning  of  the  statute  liable  to  attachment;  but  an  order 
of  attachment  made  by  a  court  against  a  non-resident  distrib- 
utee cannot  have  effect  upon  the  share  of  such  distributee  until 
after  final  settlement  of  the  estate/^ 

The  right  of  the  creditor  in  such  instance  is  subordinate  to  the 
right  of  the  executor  or  administrator  to  deduct  from  the  share 
of  a  distributee,  or  from  the  legacy  of  any  legatee,  any  sum 
owing  bv  either  to  the  estate  of  the  decedent/- 


and  remote  heirs  per  stirpes  in  pref- 
erence to  per  capita.  Kilgore  v.  Kil- 
gore,  127  Ind.  276,  26  N.  E.  56.  Un- 
der an  agreement,  signed  by  the  heirs 
of  L.,  that  "in  the  distribution  of" 
his  estate  B.  "shall  receive  an  equal 
share  with  each  other  child,"  B.  is 
entitled  to  share  in  the  common 
estate,  if  any,  in  which  each  is  en- 
titled to  share,  and  not  in  personal 
property  and  lands  which  have  been 
disposed  of  by  will  to  one  of  such 
other  children.  Beard  v.  Lofton,  102 
Ind.  408,  2  X.  E.   129. 

*°Filligin  V.  Wylie,  3  Ind.   163. 

"Stratton  v.  Ham,  8  Ind.  84.  65 
Am.  Dec.  754;  Burns'  R.  S.  1908,  § 
977.  A  will  gave  lands  for  life  to 
the  testator's  wife,  which  at  her 
death  were  to  be  sold,  the  proceeds  to 
be  equallj'  divided  amongst  his  five 
children.  At  the  suit  of  a  creditor 
of  one  of  the  children,  his  share  of 
the  lands  was  attached  and  the  exec- 
utor garnished,  a  judgment  obtained, 
ordered  to  sell  the  attached  lands, 
and    that   the    executor   pay   on   final 


settlement  of  the  estate,  of  the 
debtor  child's  distributive  share,  to 
the  creditor,  a  sum  sufficient  to  satis- 
fy the  judgment.  The  creditor 
bought  the  attached  land  at  sheriff's 
sale,  and  took  a  sheriff's  deed.  The 
executor  died,  and  an  administrator 
de  bonis  non,  upon  death  of  the 
widow,  sold  the  land,  by  order  of 
court,  as  the  will  directed.  Held, 
that  the  share  of  the  debtor  child  in 
the  proceeds  should  be  paid  to  his 
creditor,  who,  by  the  sheriff's  sale, 
had  become  the  owner  of  the  child's 
interest  in  the  land,  and,  consequent- 
ly, was  entitled  to  the  proceeds  there- 
of. Simonds  v.  Harris,  92  Ind.  505 ; 
Koons  v.  Mellett,  121  Ind.  585,  23  N. 
E.  95,  7  L.  R.  A.  23  In. 

''  Holmes  v.  McPheeters,  149  Ind. 
587,  49  N.  E.  452:  New  v.  New,  127 
Ind.  576.  27  N.  E.  154;  Koons  v. 
Mellett,  121  Ind.  585,  23  N.  E.  95,  7 
L.  R.  A.  231n;  Fiscus  v.  Fiscus,  127 
Ind.  283,  26  N.  E.  831;  Weaver  v. 
Gray,  Zl  Ind.  App.  35,  16  N.  E.  795. 


544  INDIANA  PROBATE  LAW.  g  33O 

Ordinarily  probate  courts  have  no  power  to  determine  the 
validity  of  a  disputed  assignment  of  a  legacy  or  of  a  distributive 
share  of  the  estate.  The  order  of  distribution  should  be  made  to 
the  one  who  legally  would  succeed  to  the  property  leaving  all 
questions  of  disputed  rights  to  be  settled  in  the  courts  in  the  reg- 
ular way.^^  But  where  the  claim  of  an  assignee  to  a  legacy  or 
to  a  distributive  share  is  undisputed  the  probate  court  would  have 
authority  to  decree  payment  to  the  assignee.**  And  as  an  as- 
signee could  take  no  greater  right  in  a  legacy  or  distributive  share 
than  the  assignor  possessed,  he  would  take  such  claim  subject  to 
all  rights  of  set-off  in  favor  of  the  executor  or  administrator 
against  the  assignor.*^ 

The  assignment  or  sale  of  one's  interest  in  the  estate  of  a  liv- 
ing person  passes  no  title  to  such  assignor's  distributive  share  of 
the  estate  after  the  death  of  the  owner.*'' 

The  rule  is  that  the  law  in  force  at  the  time  of  the  death  of  the 
decedent  will  control  the  rights  of  his  legatees  and  distributees. 
From  this  doctrine  it  follows  that  if  a  person  entitled  to  a  dis- 
tributive share  of  an  estate  dies  before  distribution  is  made,  or 
before  his  legacy  has  been  paid  to  him,  his  share  will  go  to  his 
personal  representatives  and  not  to  those  who  by  reason  of  his 
death,  have  become  the  next  of  kin  of  the  testator  or  intestate.*^ 

It  is  practically  the  universal  rule  in  this  country,  particularly 
as  between  an  intestate  and  his  own  children,  that  posthumous 
children,  born  within  the  usual  period  of  gestation  after  the  death 
of  the  intestate,  will  be  entitled  to  share  in  the  estate  of  the  in- 

'' Johnson    v.    Jones,    47   Mo.    App.  (Pa.)  79;  Ford  v.  O'Donnell,  40  Mo. 

237;   Wood  v.   Stone,  39  N.  H.  572;  App.   51;    Hopkins   v.   Thompson,   12, 

Hill  V.  Hardy,  34  Miss.  289;  Know!-  Mo.   App.   401. 

ton    V.    Johnson,    46    Me.    489;    Hoi-  '"Smith  v.  Baylis,  3  Dem.   (N.  Y.) 

comb  V.  Sherwood,  29  Conn.  418;  In  567;  McClure  v.  Raben,  133  Ind.  507, 

re,  Randall,  152  N.  Y.  508,  46  N.  E.  ZZ  N.  E.  275,  36  Am.  St.  558;  Habig 

945.  V.  Dodge,  127  Ind.  31,  25  N.  E.  182. 

"Otterson  v.  Gallagher,  88  Pa.   St.  "Brown    v.    Critchell,    110   Ind.   31, 

355;    Vanhorn    v.    Walker,    27    Mo.  7  N.  E.  888,  11  N.  E.  486;  Sarver  v. 

App.  n.  Beal,    36    Kan.    555,     13    Pac.    743; 

^^Keim    v.    Muhlenberg,    7    Watts.  Thompson  v.  Thomas,  30  Miss.  152. 


§    331  DISTRIBUTION LEGACIES DISCHARGE.  545 

testate  father  as  if  they  were  born  during  his  Hfetime  and  had 
survived  him.*® 

Judgments  taken  against  an  heir  in  the  Hfetime  of  the  ancestor 
become  hens  upon  such  heir's  interest  in  the  land  of  the  ancestor 
at  his  death,  and  upon  a  sale  of  the  land  by  the  administrator  the 
lien  of  such  judgTnent  is  transferred  to  the  proceeds  of  the  sale 
in  the  hands  of  the  administrator  and  binds  the  heir's  distributive 
share  in  such  proceeds  to  the  same  extent  that  it  did  the  land.*^ 

§  331.  Right  of  set-off  to  legacies  and  distributive  shares. 
— The  indebtedness  of  a  legatee  or  distributee  to  the  estate  of  the 
decedent  constitutes  assets  of  such  estate  which  the  executor  or 
administrator  must  charge  himself  with  and  collect  and  account 
for  as  in  the  case  of  other  assets.  If  such  legatee  or  distributee  is 
insolvent  so  that  such  debt  cannot  be  collected  from  him,  or  for 
any  reason  neglects  or  refuses  to  pay  it,  the  law  permits  the  ex- 
ecutor or  administrator  to  retain  the  amount  of  such  indebtedness 
from  any  legacy  or  distributive  share  due  such  debtor  on  final 
settlement.  And  this  right  of  set-off  exists  in  favor  of  the  estate 
whether  the  legatee  or  distributee  was  indebted  to  the  deceased 
before  his  death,  or  whether  the  liability  was  contracted  with  the 
estate  thereafter,^"  and  even  where  the  debtor's  property  is  less 
than  the  amount  allowed  to  him  by  law  as  exempt  from  execu- 
tion.°^  But  an  indebtedness  due  to  the  administrator  personally 
cannot  be  set  off.°^ 

The  right  of  the  executor  or  administrator  to  deduct  a  debt  due 
to  the  estate  from  the  legatee  or  distributee  is  usually  denomi- 
nated the  right  of  set-off,  and  yet  in  a  strict  sense  it  is  not  set- 
off. It  is  said  in  one  case  that  "the  ground  upon  which  an  admin- 
istrator is  entitled  to  retain  so  much  of  the  distributive  share  of 

^^4    Kent.    Com.   412;    1    Bl.    Com.  E.  154;  Gosnell  v.  Flack,  1(i  Md.  423, 

130;    Morrow    v.    Scott,    7    Ga.    535;  25  Atl.  411,  18  L.  R.  A.  158. 

Cox  V.   Matthews,   17  Ind.  367.  "' Fiscus  v.  Fiscus,  127  Ind.  283,  26 

'"Taylor  v.  McGrew,  29  Ind.  App.  N.   E.  831. 

324,  64  N.  E.  651;  Koons  v.  Mellett,  ==  McLaughlin  v.  Barnes,   12  Wash. 

121  Ind.  585,  23  N.  E.  95,  7  L.  R.  A.  ZIZ,  41    Pac.   62;   Dray  v.   Bloch,  29 

23 In.  Ore.  347,  45   Pac.  112. 

^  New  V.  New,  127  Ind.  576,  27  N. 

35 — Pro.  L.\w. 


246  INDIANA    PROBATE    LAW.  ^33^ 

a  distributee  as  will  satisfy  a  debt  due  from  the  latter  to  the 
estate  is,  that  the  heir  or  distributee  makes  a  demand  upon  the 
administrator  in  respect  to  assets  in  his  hands  as  administrator, 
and  the  just  and  equitable  answer  in  such  case  is  that  the  person 
making  the  demand  has  already  in  his  hands  assets  belonging  to 
the  estate  in  excess  of  the  amount  of  the  distributive  share  which 
he  is  demanding.'""'  And  this  right  of  retainer  or  set-off  exists 
against  an  assignee,  alienee,  or  creditor  of  the  legatee  or  distribu- 
tee as  well  as  against  such  legatee  or  distributee  himself/''  As 
soon  as  the  administrator  or  executor  ascertains  the  amount 
which  will  be  due  from  him  to  a  legatee  or  distributee,  it  becomes 
his  duty  to  apply  such  sum  to  the  debt  owing  to  the  estate  from 
such  legatee  or  distributee." 

The  right  of  heirs  to  participate  equally  in  the  estate  of  their 
ancestor  is  superior  to  that  of  a  lienholder  with  notice.  Therefore 
a  debt  due  the  estate  from  one  heir  may  be  retained  out  of  his 
distributive  share  of  the  surplus  proceeds  arising  from  a  sale  of 
land  by  the  administrator  as  against  the  mortgagee  of  such  heir, 
who  took  a  mortgage  upon  the  heir's  undivided  interest  in  the 
land  sold  with  notice  of  the  debt  to  the  estate.^'' 

"'Fiscus  V.  Moore,  121  Ind.  547,  23  of  the  debt,  must  be  payable  by  the 
N.  E.  362,  7  L.  R.  A.  235;  Water-  person  entitled  to  receive  the  debt." 
man  Set-off,  §  210.  But,  as  Lord  La  Foy  v.  La  Foy,  43  N.  J.  Eq.  206, 
Cottenham  remarked  in  Cherry  v.  10  Atl.  266,  3  Am.  St.  302. 
Boultbee,  4  Mylne  &  Craig,  442,  "the  '*  Ranking  v.  Barnard,  5  Madd.  Ch. 
term  'set-off'  is  very  inaccurately  28;  Koons  v.  Mellett,  121  Ind.  585, 
used  in  cases  of  this  kind.  In  its  23  N.  E.  95,  7  L.  R.  A.  231n;  Weak- 
proper  use,  it  is  applicable  only  to  ley  v.  Conradt,  56  Ind.  430;  Fiscus 
mutual  demands,  debts  and  credits,  v.  Moore,  121  Ind.  547,  23  N.  E.  362, 
The  right  of  an  executor  of  a  cred-  7  L.  R.  A.  235. 

itor   to   retain   a    sufficient   part  of   a        '^Fiscus  v.  Fiscus,  127  Ind.  283,  26 

legacy   given   by   the    creditor   to   the  N.  E.  831 ;  Weaver  v.  Gray,  27  Ind. 

debtor,  to  pay  a  debt  due  from  him  App.    35,    76    N.    E.    795;    Moore    v. 

to    the    creditor's    estate,    is    rather   a  State,    43    Ind.    App.    387,    84    N.    E. 

right  to  pay  out  of  the  fund  in  hand,  161. 

than  a  right  of   set-off.     Such   right        "Fiscus    v.    Moore,    121    Ind.    547, 

of  payment,  therefore,  can  only  arise  23  N.  E.  362,  7  L.  R.  A.  235;  Koons 

where  there  is  a  right  to  receive  the  v.  Mellett,  121  Ind.  585,  23  N.  E.  95, 

debt   so   to   be  paid;    and   the   legacy  7  L.   R.   A.  231n ;   New  v.   New,   127 

or  fund,  so  to  be  applied  in  payment  Ind.  576,  27  N.  E.  154.     "These  cases 


8       T  ">  T 


DISTRIBUTION LEGACIES DISCHARGE. 


547 


The  general  fund  in  hand  for  distribution  is,  for  that  purpose, 
personal  property,  although  the  statute  provides  that  the  portion 
of  the  fund  arising  from  the  surplus  of  the  proceeds  of  the  sale 
of  lands  by  the  administrator  shall  go  to  those  who  would  have 
taken  the  land,  yet  this  will  not,  as  of  course,  cany  liens  from  the 
land  and  attach  them  to  the  fund,  so  as  to  bar  a  right  of  set-off 
or  retainer  by  the  administrator.^^ 

The  fact  that  the  debt  owing  to  the  estate  by  an  heir  or  legatee 
is  barred  by  the  statute  of  limitations  so  as  to  preclude  a  recovery 
thereon  by  the  executor  or  administrator,  is  no  defense  to  the 
right  of  such  officer  to  retain  such  debt  out  of  the  share  of  such 
heir  or  legatee."* 

Where  a  legatee  or  heir  owes  to  the  estate  of  the  decedent  both 


all  recognize  the  right  of  heirs  to 
participate  equally  in  the  estate  of 
their  ancestor,  and  this  could  not  be 
if  one  heir,  and  hence  a  distributee, 
should  be  indebted  to  the  estate  in 
an  amount  equal  to  less  or  more 
than  his  distributive  share.  In  all 
of  the  cases  cited  it  is  apparent  that 
the  rule  therein  declared  rests  upon 
the  proposition  that  heirs  of  the  same 
class  are  entitled  to  share  equally  in 
the  distribution  of  the  estate,  and 
this  is  true  whether  the  funds  to  be 
distributed  are  derived  from  personal 
property  or  real  estate  converted  into 
money.  The  cases  also  involve  the 
proposition  that  the  distribution  to 
heirs,  legatees  or  distributees  is  to 
be  made  out  of  the  general  assets  of 
the  estate,  and  that  the  administra- 
tor or  other  person  charged  with 
such  distribution  can  only  retain  out 
of  such  funds  a  sum  sufficient  to  pay 
and  satisfy  a  debt,  which  such  heir, 
legatee  or  distributee  owes  the  estate. 
This  may  be  done,  as  the  authorities 
hold,  to  the  end  that  an  equal  dis- 
tribution may  be  made  and  equity 
done  between  the  heirs."     Weaver  v. 


Gray,  Zl  Ind.  App.  35,  76  N.  E.  795. 

'"'  Weaver  v.  Gray,  Zl  Ind.  App.  35, 
Id  N.  E.  795;  Holmes  v.  McPheeters, 
149  Ind.  587,  49  N.  E.  452.  "This 
recognizes  the  doctrine  that  there  ex- 
ists a  right  to  have  an  equal  distribu- 
tion of  the  estate  between  heirs,  de- 
visees and  legatees,  and  for  that  pur- 
pose there  exists,  in  equity,  a  lien 
and  right  to  have  such  a  portion  of 
an  estate,  whether  real  or  personal, 
as  goes  to  the  heirs,  applied  to  the 
payment  of  a  debt  due  from  the  heir 
to  the  estate.  In  the  case  at  bar, 
and  in  like  cases,  the  estate  vested, 
subject  to  the  rights  of  the  widow, 
and  the  testator  contemplated  an 
equal  distribution  of  such  portion  of 
his  estate  as  remained  at  the  death 
of  the  widow  between  the  legatees, 
share  and  share  alike."  New  v. 
New,  127  Ind.  576,  27  N.  E.  154. 

''Holmes  v.  McPheeters,  149  Ind. 
587,  49  N.  E.  452.  "The  statute  of 
limitation  is  one  of  repose,  and  is 
only  a  bar  to  the  remedy,  and  not 
to  the  debt  itself,  simply  leaving  it 
unpaid  without  any  legal  remedy  on 
the  part   of  the   creditor  to   enforce 


548  INDIANA    PROBATE    LAW.  §    33 1 

secured  and  unsecured  debts  and  his  share  is  not  sufficient  to  sat- 
isfy all,  the  executor  or  administrator  has  the  right  to  apply  the 
amount  of  the  share  retained  to  the  payment  of  the  unsecured 
debt.^" 

§  332.  The  rules  of  distribution. — The  real  and  personal 
property  of  any  person  dying  intestate  shall  descend  to  his  or  her 
children  in  equal  proportions ;  and  posthumous  children  shall 
inherit  equally  with  those  born  before  the  death  of  the  ancestor.""^ 
This  statute  vests  the  title  to  personal  as  well  as  real  property  in 
the  heirs  on  the  death  of  the  ancestor,  subject  to  be  divested  on 
the  appointment  of  an  administrator."^  And  after  such  admin- 
istrator has  made  a  final  settlement  of  the  estate,  the  surplus,  re- 
maining in  his  hands,  is  distributed  according  to  the  law  of  de- 
scent in  force  at  the  time  of  such  intestate's  death. 

The  common  law  canons  of  descent  have  been  excluded  in  this 
state  by  our  statute  of  descents,  and  degrees  of  kindred  are  com- 
puted according  to  the  rules  of  the  civil  law,  but  the  rules  of  de- 
scent and  distribution  are  regulated  wholly  by  statute.®^  The 
term  ancestor  as  used  in  the  statute  of  descents  means  any  one 
from  whom  the  estate  is  inherited.''^ 

As  the  statute  makes  no  distinction  between  heirs,  distributees, 
and  next  of  kin  in  so  far  as  the  rules  of  descent  and  distribution 

its  payment  by  suit,  in  the  event  the  ''"  Sleeper  v.   Kelley,  65  N.   H.  206, 

debtor  relies  on  the  statute  as  a  de-  18  Atl.  718. 

fense.       Measured,     however,     by     a  «>  Burns'  R.  S.  1908,  §  2990. 

moral    standard,    and    one   in    accord  "  Coldron  v.   Rhode,    7    Ind.    151; 

with   good   conscience,   the  debtor   is  Hutson  v.   Merrifield,  51   Ind.  24,    19 

still   under  an   obligation   to  pay  his  Am.  Rep.  722 ;  Weyer  v.  Second  Nat. 

debt,    although    a    recovery    thereon  Bank,  57  Ind.    198. 

under  the  law  may  be  barred  by  the  ""  Murphy    v.    Henry,    35    Ind.   442 ; 

lapse  of  time.     The  statutes   of  this  Bruce  v.   Bissell,  119  Ind.  525,  22  N. 

state   recognize  the  right  of  a  party  E.  4,  12  Am.  St.  436;  Cloud  v.  Bruce, 

to  enforce  a  set-off  against  a  cause  61   Ind.  171. 

of   action,  although  a  recovery  upon  "^  Washburn  on  Real  Property,  vol. 

the    debt    upon   which   the   set-off   is  3,  p.   18,  §  39;   Prickett  v.  Parker,  3 

based      is      barred      by      limitation."  Ohio  St.  394. 

Holmes  v.  McPheeters,  149  Ind.  587, 

49  N.  E.  452. 


§    332  DISTRIBUTION LEGACIES DISCHARGE.  549 

are  concerned,  the  personal  estate  will  pass  in  the  same  order  as 
does  the  decedent's  real  estate.*''* 

Every  rule  of  descent  or  distribution  shall  be  subject  to  the 
provisions  made  in  behalf  of  the  surviving  husband  or  wife  of 
the  decedent."^ 

As  far  as  the  descent  or  distribution  of  the  personal  estate  of  a 
decedent  is  concerned,  the  statute  provides:  If  a  man  die  intestate, 
leaving  a  widow  and  a  child  or  children  not  exceeding  two,  the 
personal  property  of  such  intestate  shall  be  equally  divided  among 
the  widow  and  children,  the  widow  taking  one  equal  share  with 
one  child;  but  if  the  number  of  children  exceed  two,  the  widow's 
share  shall  not  be  reduced  below  one-third  of  the  whole. ^'^ 

The  word  intestate  used  in  the  rules  of  descent  set  out  herein, 
refers  to  property  of  the  estate  undisposed  of  by  will,  and  does 
not  mean  that  a  decedent  shall  literally  die  intestate ;  that  is,  not 
having  made  any  will.*'"  And  the  words  "no  child,"  properly 
construed,  mean  neither  children,  grandchildren  nor  their  de- 
scendants alive.  "^ 

It  is  said  that  distribution  neither  gives  a  new  title  to  property, 
nor  transfers  a  distinct  right  in  the  estate  of  the  deceased  owner, 
but  is  simply  declaratory  as  to  the  persons  upon  whom  the  law 
casts  the  succession,  and  the  extent  of  their  respective  interests."^ 

The  estate  of  a  decedent  Avho  leaves  neither  a  wife  nor  child, 
and  no  father  or  mother,  is  to  be  distributed  to  the  collateral 
kindred  of  such  decedent  and  the  next  in  degree  in  the  order  of 
succession  in  that  kind  of  a  case  is  the  brothers  and  sisters  of  the 
decedent  living  and  the  descendants  of  such  as  are  dead.^*' 

In  case  of  any  brother  or  sister  of  such  deceased  intestate  dy- 
ing before  him,  the  descendants,  if  any,  of  such  brother  or  sister, 
would  take  the  share  of  the  deceased  parent  per  stirpes,  that  is, 

"  For   a    detailed   treatment   of  the  say.    47    Ind.    283 ;    Cool    v.    Cool,   54 

subject  of  descents,  see  Title  4,  post.  Ind.  225. 

•"Burns'   R.    S.    1908,   §  3012.  «nvyle  v.   Kyle,   18  Ind.    108. 

"'Burns'  R.   S.   1908,   §  3018.  "» Robinson  v.   Fair,   128  U.   S.   53, 

"  Rocker  v.  Metzger,  171  Ind.  364,  2,2  L.  ed.  415,  9  Sup.  Ct.  30. 

86  N.  E.  403;   Armstrong  v.   Berre-  '"Burns'  R.  S.  1908,  §  2993. 
man,    13   Ind.   422;    Lindsay  v.    T  ind- 


550  INDIANA  PROBATE  LAW.  §  332 

all  such  children  take  together  collectively  the  share  such  de- 
ceased brother  or  sister  would  have  taken  if  he  had  survived 
the  intestate.  This  rule,  however,  applies  only  in  those  cases 
where  those  entitled  to  take  the  estate  stand  in  unequal  degrees 
of  relationship  to  the  intestate.  If  all  who  are  entitled  to  take 
stand  in  the  same  degree  of  kinship  to  an  intestate  they  share 
the  estate  equally,  that  is  per  capita. ^^ 

If  the  intestate  leaves  no  wife  or  child  or  descendant  of  chil- 
dren surviving  but  leaves  a  father  or  mother  or  both,  such  parent 
or  parents  will  be  entitled  to  one-half  the  estate,  and  the  brothers 
and  sisters  of  the  decedent  or  their  descendants  will  take  the  other 
half.  But  if  there  are  no  brothers  or  sisters  or  descendants  of 
them  living  then  the  father  and  mother  take  the  whole  estate 
jointly,  or  to  the  survivor  if  either  be  dead.'^- 

The  doctrine  of  ancestral  estates,  that  is  to  say  estates  acquired 
by  the  intestate  by  gift,  devise,  or  descent,  applies,  in  this  state, 
to  the  distribution  of  personal  property  as  well  as  to  the  descent 
of  real  estate.'^  In  ancestral  estates  only  those  having  the  blood 
of  the  ancestor  from  whom  the  estate  came  can  inherit.  So 
where  there  are  no  persons  to  take  an  intestate's  estate  under  the 
rules  already  noticed  such  estate,  if  ancestral  in  character  will 
pass  in  the  following  order:  If  such  estate  came  through  the 
paternal  line  it  will  go  to  the  paternal  grandfather  and  grand- 
mother or  either  of  them  if  living;  next  to  the  paternal  uncles 
and  aunts  and  their  descendants,  but  if  none  in  this  class  survive, 
then  to  the  next  of  kin  in  blood  among  the  paternal  kindred. 
Upon  failure  of  any  one  in  the  paternal  line  capable  of  inheriting 
then  such  estate  will  pass  to  those  in  the  maternal  in  the  same 
order.  And  this  same  rule  applies  to  ancestral  estates  coming 
through  the  maternal  line,  such  estates  only  passing  to  kin  in  the 
paternal  line  upon  failure  of  heirs  of  the  blood  in  the  maternal 
line.  If  the  estate  is  not  ancestral  in  character  it  is  divided  be- 
tween the  two  lines  of  kindred  in  the  order  above  set  out.^* 

"Baker  v.  Bourne,  127  Ind.  466,  26  "  Rountree  v.  Pursell,  11  Ind.  App. 

N.  E.   1078;   Blake  v.  Blake,  85  Ind.  522.  39  N.  E.  747. 

65  ;  Cox  V.  Cox,  44  Ind.  368.  '^  Burns'  R.  S.  1908,  §  2994. 

"Burns'  R.   S.  1908,  §§  2992,  2993. 


§    333  DISTRIBUTION LEGACIES DISCHARGE.  551 

If  it  appears  that  the  estate  came  to  the  intestate  by  gift  or 
conveyance  in  consideration  of  love  and  affection,  and  no  child 
or  descendants  of  children  of  the  intestate  sun-ive  him,  the  estate 
will  revert  to  the  giver  of  it  if  living,  subject,  however,  to  the 
rio-hts  of  the  widow  or  widower  of  the  intestate  therein.'^ 

It  is  also  provided  that  no  person  who  unlawfully  causes  the 
death  of  another  and  shall  have  been  convicted  thereof,  or  aids 
or  abets  in  such  unlawful  killing,  shall  take  by  devise  or  descent 
any  part  of  the  property,  real  or  personal,  owned  by  the  decedent 
at  the  time  of  his  or  her  death.'" 

§  333.    Distribution  to  the  widower.— By  the  common  law 
the  husband  by  virtue  of  the  marriage  became  entitled  to  the 
personal  property  of  the  wife,  but  the  statute  changes  this  rule 
and  now  the  wife's  personal  property  remains  her  separate  prop- 
erty." But  this  statute  does  not  apply  to  property  acquired  by  the 
wife  in  another  state."     Prior  to  the  amendment  of  1891,  the 
statute  only  applied  in  terms  to  such  personal  property  of  the 
wife  as  was  held  by  her  at  the  time  of  her  marriage,  or  was  ac- 
quired during  the  coverture  by  descent,  devise,  or  gift,  and  left 
in  force  the  common-law  rule  in  reference  to  personal  property 
of  the  wife  not  so  held  or  acquired  in  one  of  the  modes  above 
indicated.'"    All  property  acquired  by  the  earnings  of  the  wife 
during  coverture  prior  to  1879  was  governed  by  the  common-law 
rule  and  belonged  to  the  husband.^"     In  that  year  a  statute  was 
enacted  by  which  a  married  woman  may  carry  on  any  trade  or 
business  and  perform  any  labor  or  service  on  her  sole  and  sep- 
arate account.     And  all  her  earnings  and  profits  accruing  to  her 
from  any  such  trade,  business,  service,  or  labor,  other  than  labor 
for  her  husband  or  family,  become  her  sole  and  separate  prop- 
erty.^^ 

"  Burns' R    S.  1908,  §  2997;  Weaver        "Smith  v.  Peterson,  62,  I"^.  243^ 
V    Gray,   2,7   Ind.   App.   35,  76  N.   E.         -  Abshire    v.     State,    53    Ind.    64; 

795  •   Dolin  V.  Leonard,  144  Ind.  410,  Carver  v.  Carver,  53  Ind.  241. 
43  N.  E.  568.  ^"  Yopst  v.  Yopst,  51  Ind.  61;  Jen- 

"Burns'  R.  S.  1908,  §  2995.  kins  v.  Flinn,  Z7  Ind.  349. 

-Wilkins   V.    Miller,  9   Ind.    100.  "Burns'  R.  S.   1908,  §  7867. 


552  INDIANA  PROBATE  LAW.  §  333 

That  section  of  the  statute  which  gives  to  the  survivor  the 
entire  estate  where  the  husband  or  wife  dies  intestate  leaving  no 
child  and  no  father  or  mother,  is  construed  to  carr}-  within  its 
provisions  all  undevised  estate,  the  word  "intestate"  referring 
to  the  property  and  not  to  the  decedent.  So  where  either  the  hus- 
band or  wife  dies  testate,  leaving  no  child  or  father  or  mother, 
and  the  survivor  by  reason  of  an  election  not  to  take  the  provision 
made  by  the  will,  becomes  entitled  to  take  under  the  law,  and 
by  reason  of  such  election,  all  or  any  part  of  the  estate  remains 
undisposed  of,  such  undisposed  of  estate  passes  by  descent  to 
such  surviving  wife  or  husband.^* 

The  right  of  a  husband  to  a  distributive  share  in  the  personal 
estate  of  a  deceased  intestate  wife  is  fixed  by  statute,  and  the 
share  he  takes  is  really  the  same  she  takes  in  his  personal  estate 
on  his  death  intestate.  The  only  difference  is  found  in  section 
3018,  Bums'  R.  S.  1908,  where  she  takes  half  if  there  is  only  one 
child  living.  As  against  a  child  or  children  living,  the  husband's 
share  in  the  deceased  wife's  personal  estate  never  exceeds  one- 
third. ^^  But  if  the  wife  die  intestate  leaving  no  child,  but  leaving  a 
father  or  mother  or  both,  and  her  entire  estate  exceeds  one  thou- 
sand dollars,  the  husband  takes  three-fourths,  and  if  the  entire  es- 
tate is  worth  less  than  that  amount  he  is  entitled  to  it  all  ;^*  and  if 
there  is  no  father  or  mother,  the  whole  estate  goes  to  the  husband 
regardless  of  its  value. ^^^  If  the  wife  dies  testate  the  husband 
may  elect  to  take  under  the  will,**^  and  that  too,  whether  any 
pecuniary  provision  has  been  made  for  him  therein  or  not.*' 

If  a  husband  shall  have  left  his  wife  and  be  living  in  adultery 
at  the  time  of  her  death  he  will  not  be  entitled  to  any  part  of 
her  estate,^^  and  if  he  shall  have  abandoned  her  without  just  cause 

'=  Rocker  v.  Metzger,  171  Ind.  364,  ^'Burns'  R.  S.   1908,  §  3026. 

86  X.  E.  403;  Morris  v.  Morris,  119  "Burns'  R.  S.  1908,  §  3027. 

Ind.    341,   21    N.    E.   918;    Rusing  v.  *=^  Burns'  R.  S.  1908,  §  3028. 

Rusing.  25  Ind.  6Z ;  Cool  v.  Cool,  54  ^  Burns'  R.  S.  1908,  §  3026. 

Ind.    225;    Dale    v.    Bartley,    58    Ind.  "'Traudt    v.     Hagerman,     27     Ind. 

101;    Waugh   V.   Riley,  68   Ind.   482;  App.   150,  60  N.  E.  1011. 

Hank  V.  McComas,  98  Ind.  460 ;  Col-  *^  Burns'  R.  S.  1908,  §  3035 ;   Brad- 

lins   V.    Collins,    126   Ind.    559,   25   N.  ley  v.  Thixton,    117   Ind.  255,    19  N. 

E.  704,  28  X.  E.  190.  E.  335. 


§    334  DISTRIBUTIOX LEGACIES DISCHARGE.  553 

and  has  failed  to  make  suitable  provision  for  her  support  he  shall 
take  no  part  of  her  estate.^® 

§  334.  Kindred  of  the  half  blood. — Where  brothers  and 
sisters  have  the  same  father  and  mother  they  are  said  to  be  re- 
lated to  each  other  by  the  v^hole  blood ;  but  if  they  have  the  same 
father  but  a  different  mother,  or  the  same  mother  but  a  different 
father  they  are  related  by  the  half  blood.  Among  collateral  kin- 
dred this  difference  gives  rise  usually  to  some  changes  in  the 
course  of  succession  to  intestate  property.  In  this  state  though, 
practically  no  distinction  is  made  between  heirs  of  the  whole 
blood  and  those  of  the  half  blood.  The  only  distinction  is  found 
in  ancestral  estates  and  even  in  these  the  half  blood  is  only  post- 
poned to  those  of  the  whole  blood  and  will  take  such  estates  on 
failure  of  heirs  of  the  whole  blood. ^° 

The  word  ancestor  as  used  in  this  statute  has  been  held  to 
include  all  from  whom  a  title  by  descent  could  be  derived  under 
any  circumstances,  and  as  synonymous  with  kindred.''^  And 
the  word  kindred  as  used  here  must  be  construed  to  mean  kin- 
dred of  the  person  last  seized  of  the  estate.®-  The  court  says: 
"We  think  it  should  be  construed  as  if  it  read  as  follows  :  Kindred 
of  the  half  blood  shall  inherit  equally  with  those  of  the  whole 
blood;  but  if  the  estate  shall  have  come  to  the  intestate  by  gift, 
devise,  or  descent,  from  any  ancestor,  those  kindred  of  the  half 
blood  only,  who  are  of  the  blood  of  such  ancestor  shall  inherit : 
Provided,  That  on  failure  of  such  kindred  of  the  half  blood  hav- 
ing the  blood  of  such  ancestor,  other  kindred  of  the  half  blood 
shall  inherit  as  if  they  were  of  the  whole  blood. ®^ 

This  statute  has  been  held  to  apply  to  heirs  in  the  same  degree 
only,  so  that  if  there  be  no  brother  or  sister  of  either  the  whole  or 
the  half  blood  of  the  ancestor,  a  half-brother  not  of  the  blood 

^Burns'  R.  S.  1908,  §  3036;  Hinton  ^  Smith  v.  Smith,  23  Ind.  202;  Ald- 

V.  Whittaker,  101   Ind.  344.  ridge  v.   Montgomery,  9  Ind.  302. 

■*  Burns'  R.  S.  1908,  §  2996.  "'  McClanahan  v.  Trafford,  46  Ind. 

"Greenlee    v.    Davis,    19    Ind.    60;  410;  Anderson  v.  Bell.  140  Ind.  375, 

Barnes  v.  Lovd.  2,7  Ind.  523.  39  X.  E.  735,  29  L.  R.  A    541n. 


554  INDIANA  PROBATE  LAW,  §  335 

of  the  ancestor  will  take  the  estate  to  the  exclusion  of  kindred 
of  the  blood  of  a  more  remote  degree.®* 

The  half-brothers  and  sisters  of  an  illegitimate  intestate  will 
inherit  from  him  where  his  mother  is  dead  and  he  leaves  no  de- 
scendants."^ 

§  335.  Illegitimates,  and  adopted  children. — Illegitimate 
children  shall  inherit  from  the  mother  as  if  they  were  legitimate, 
and  through  the  mother,  if  dead,  any  property  or  estate  which 
she  would,  if  living,  have  taken  by  gift,  devise,  or  descent,  from 
any  other  person. ''''  The  resident  illegitimate  child  of  any  man 
dying  intestate,  leaving  no  heirs  resident  in  the  United  States,  or 
legitimate  children  capable  of  inheriting,  sliall  inherit  all  the  real 
and  personal  estate  of  such  father  provided  he  has  recognized 
such  illegitimate  child  as  his  during  his  lifetime."'  And  if  a  man 
shall  marry  the  mother  of  an  illegitimate  child,  and  acknowledge 
it  as  his  own,  such  child  shall  be  deemed  legitimate."**  Under  this 
last  statute  a  man  who  marries  a  pregnant  woman  and  afterwards 
lives  with  her  as  her  husband,  by  so  doing  makes  such  child  his 
legitimate  heir."" 

The  mother  of  an  illegitimate  child  dying  intestate,  without 
issue  or  other  descendants,  shall  inherit  his  estate ;  and  if  such 
mother  be  dead,  her  descendants  or  collateral  kindred  shall  take 
the  inheritance  in  the  order  hereinbefore  prescribed.^ 

A  father  of  an  illegitimate  child  who  dies  intestate  leaving  no 
legitimate  children  or  their  descendants  surviving  him,  who  has 
duly  acknowledged  such  illegitimate  as  his  own  makes  such  ille- 
gitimate his  legal  heir  by  such  acknowledgment  and  such  child 
will  be  entitled  to  inherit  from  him." 

There  is  provision  made  by  statute  in  this  state  for  the  legal 

"Pond  V.   Irwin,   113   Ind.  243,    15  E.  644;  Franklin  v.  Lee,  30  Ind.  App. 

N.  E.  272.  31,  62  N.  E.  78. 
"  Ellis  V.  Hatfield,  20  Ind.  101.  '  Burns'  R.   S.   1908,  §  3002. 

^Burns'  R.  S.  1908,  §  2998.  =  Burns'  R.   S.   1908,  §  3000;Town- 

'■  Burns'  R.  S.  1908,  §  2999.  send   v.   Meneley,   37   Ind.    App.    127, 

°' Burns'  R.  S.  1908.  §  3001.  74  N.  E.  274.  76  N.   E.  321;   Daggy 

""Bailey    v.     Boyd,    59    Ind.    292;  v.  Wells,  38  Ind.  App.  27,  76  N.  E. 

Binns  v.   Dazey.   147  Ind.  536,  44  N.  524. 


§    ^T,6  DISTRIBUTION LEGACIES DISCHARGE.  555 

adoption  of  children  who  have  been  born  to  other  parents,  and  a 
comphance  with  this  statute  makes  such  adopted  child  or  children 
members  of  the  family  of  the  person  or  persons  so  adopting  them, 
and  gives  to  them  the  legal  status  of  natural  children  entitling 
them  to  all  the  rights  accorded  by  law  to  such  natural  children 
including  the  right  of  inheritance.  The  rights  growing  out  of 
this  relation  both  as  affecting  the  child  and  the  adopting  parents 
are  fully  discussed  elsewhere  and  will  not  be  entered  on  in  this 
place.^ 

Adoption  creates  a  statu,s  and  whatever  the  rights  of  an 
adopted  child  as  given  by  the  statutes  of  the  state  of  its  adoption, 
they  follow  it  and  are  valid  in  all  other  states  in  so  far  as  not 
inconsistent  with  the  laws  and  policy  of  such  other  state. ^ 

§  336.  Charging  advancements.^-The  doctrine  of  advance- 
ment is  invoked  to  effectuate  equality  in  the  distribution  of  a  de- 
cedent's estate,  the  presumption  being  that  he  intends  all  his 
children  to  share  equally,  not  only  in  what  estate  he  leaves  at 
death,  but  in  all  that  came  from  him.  An  advancement  is  said 
to  be  a  gift  from  the  parent,  while  in  life,  of  a  portion  or  all 
of  the  share  of  a  child  in  his  estate  which  would  come  to  it  under 
the  statutes  of  descent  and  distribution.  To  constitute  an  ad- 
vancement the  gift  must  be  irrevocable.  The  ancestor  must  in 
his  lifetime,  divest  himself  of  all  interest  in  the  property  set  apart 
to  the  heir." 

Advancements  in  real  or  personal  property  sliall  be  charged 
against  the  child  or  descendants  of  the  child  to  whom  the  ad- 
vancement is  made  in  the  division  or  distribution  of  the  estate; 
but  if  the  advancement  exceed  the  equal  proportion  of  the  child 
advanced,  the  excess  shall  not  be  refunded.''     In  the  division  or 

'Chapter  XXXIII  post.  30  Atl.  467;  Gray  v.  Holmes,  57  Kan. 

*  Estate    of    Sunderland,    60    Iowa  217.  45   Pac.  596,  33  L.  R.  A.  207. 
732,    13    X.    W.    655;    Ross    v.    Ross,         'Joyce   v.    Hamilton,    111    Ind.    163, 

129  Mass.  243,  37  Am.  Rep.  321 ;  Van  12    X.    E.    294 ;    Dutch's    Appeal,    57 

Matre  v.   Sankey,  148  111.  536,  36  N.  Pa.    St.   461;    Grattan   v.    Grattan,    18 

E.  628.  39  Am.  St.  196n,  23  L.  R.  A.  111.    167,   65   Am.   Dec.   726;   Johnson 

665;   Melvin  v.   Martin,  18  R.  I.  650,  v.  Patterson,  13  Lea  (Tenn.)  626. 

"Burns'  R.   S.   1908.  §  3010. 


556  INDIANA  PROBATE  LAW.  §  336 

distribution  of  an  estate,  the  amount  or  value  of  an  advancement 
shall  be  estimated  according  to  the  amount  or  value  when  given.'' 
An  advancement  is  a  giving  by  anticipation  the  whole  or  a 
part  of  what  is  supposed  a  child  will  be  entitled  to  on  the  death 
of  the  parent  or  the  party  making  the  advancement,  and  to 
constitute  an  advance  by  "settlement  or  portion  of  real  or  per- 
sonal estate,"  such  settlement  or  portion  must  have  been  so  in- 
tended. It  is  a  question  purely  of  intention.  It  must  have  been 
intended  as  an  advancement  and  not  as  a  gift,  and  such  intention 
may  be  shown  by  parol  proof,  and  the  declarations  of  the  party 
making  the  advancement  before  and  at  the  time  of  making  it,  of 
his  intention,  are  admissible  to  establish  such  intention ;  however^ 
in  the  absence  of  any  statutoiT  provision,  or  any  other  evidence, 
to  the  contrary,  the  legal  presumption  is,  that  the  conveyance  of 
real  estate  and  the  transfer  of  personal  property  to  a  child  by  a 
parent  is  prima  facie  an  advancement  and  not  a  gift,  and  the 
question  as  to  whether  a  conveyance  or  transfer  of  property  was 
or  was  not  intended  as  an  advancement  is  a  question  of  fact 
proper  to  be  tried  by  a  jury.^ 

'Burns'  R.  S.  1908,  §  3011.  as  trustee,  and  were  never  in  the 
*Shaw  V.  Kent,  11  Ind.  80;  Dill-  actual  possession  of  said  A.  Sub- 
man  V.  Cox,  23  Ind.  440;  Stokes-  sequently  to  the  charging  of  said 
berry  v.  Reynolds,  57  Ind.  425;  shares  against  his  daughters,  the 
Woolery  v.  Woolerj',  29  Ind.  249,  95  bank  upon  the  written  order  of  A. 
Am.  Dec.  630;  Duling  v.  Johnson,  32  delivered  to  one  M.  all  the  shares 
Ind.  155;  Stanley  v.  Brannon,  6  held  by  said  bank  for  A.,  as  trustee, 
Blackf.  (Ind.)  193;  Harness  v.  Har-  including  the  shares  charged  against 
ness,  49  Ind.  384;  Dille  v.  Webb,  61  his  daughters.  M.  sold  all  of  said 
Ind.  85;  Scott  Intestate  Law,  p.  543.  shares  and  invested  the  proceeds 
A.  charged  certain  shares  of  mining  thereof  in  other  mining  stocks.  Aft- 
stock  which  he  had  purchased  erward,  upon  the  order  of  A.,  M. 
against  two  of  his  daughters.  He  borrowed  money  upon  the  shares  last 
also  charged  them  with  assessments  purchased  for  the  purpose  of  mak- 
made  on  said  stock  from  time  to  ing,  and  did  make,  additional  pur- 
time,  and  paid  by  him,  and  credited  chases  of  mining  stock.  The  stocks 
them  with  the  amount  of  a  dividend  thus  pledged  for  loans,  and  those 
on  said  stock,  received  by  him  and  purchased  with  the  borrowed  money, 
paid  by  him  to  them.  These  shares,  were  afterward  sold  by  the  pledgees 
together  with  other  shares,  were  held  to  pay  for  the  loans,  and  nothing  was 
by  the  Bank  of  California  for  the  realized  over  and  above  the  amount 
account  and  in  the  name  of  said  A.,  of    said   loans.     No    shares    of   stock 


§  336 


DISTRIBUTION LEGACIES DISCHARGE. 


557 


An  advancement  of  money  or  other  property  from  a  parent  to 
a  child,  as  a  general  rule,  is  a  question  of  intention  on  the  part  of 
the  parent,  and  although  it  may  have  been  considered  and  treated 
by  the  parent  as  a  debt  from  the  child,  yet  the  parent  has  a  right 
at  any  time  during  life  to  change  a  debt  into  an  advancement.'-* 

Whenever  it  becomes  necessaiy,  in  a  case  involving  a  question 
of  advancement,  to  ascertain  from  the  surrounding  circumstances 
the  intention  with  which  a  donor  conveyed  property,  so  long  as 
there  is  no  satisfactory  evidence  to  the  contrary,  the  law  looking 
to  the  relationship  and  rights  of  others  will  ascribe  to  the  donor 
that  intention  most  favorable  to  an  equal  distribution  of  his  prop- 
erty among  all  his  children,  and  when  there  is  no  satisfactory 
evidence  of  what  occurred  at  the  time  the  conveyance  was  made, 
and  the  papers  connected  with  the  transfer  do  not  determine  the 
character  of  the  transaction,  the  surrounding  circumstances  are 
to  be  looked  to  in  ascertaining  whether  it  ought  to  be  considered 
as  an  advancement  or  otherwise/" 


were  ever  delivered  to  either  of  said 
daughters,  nor  did  they  ever  have 
the  possession  of  or  exercise  any 
control  over  the  same,  or  have  any- 
thing to  do  with  the  disposition  of 
said  stock.  Held,  that  the  shares  of 
stock  so  charged  against  said  daugh- 
ters could  not,  in  the  settlement  of 
the  father's  estate,  be  considered  as 
an  advancement  to  them.  Herkimer 
V.  McGregor,  126  Ind.  247,  25  N.  E. 
145,  26  N.  E.  44. 

'Baum  V.  Palmer,  165  Ind.  513,  76 
N.  E.   108. 

'"Ruch  V.  Biery,  110  Ind.  444,  11 
N.  E.  312;  Parks  v.  Parks,  19  Md. 
323;  Clark  v.  Willson,  27  Md.  693; 
Herkimer  v.  McGregor,  126  Ind.  247, 
25  N.  E.  145,  26  N.  E.  44.  The  ques- 
tion as  to  whether  a  conveyance  or 
transfer  of  money  or  property  to  a 
child  is  to  be  regarded  as  a  gift  or 
an  advancement,  is  to  be  determined 
by   the    intention    of    the    parent.     In 


an  action  by  the  daughter  to  quiet 
title,  evidence  of  declarations  made 
by  her  father  previous  to  the  time 
she  took  possession,  showing  an  in- 
tention different  from  that  asserted 
in  the  plaintiff's  behalf,  is  admissible. 
Joyce  V.  Hamilton,  111  Ind.  163,  12 
N.  E.  294;  Thistlewaite  v.  Thistle- 
waite,  132  Ind.  355,  31  N.  E.  946. 
Where,  by  the  direction,  and  with  the 
consent  of  the  owner,  his  daughter 
and  her  husband  enter  into  the  pos- 
session of  a  tract  of  land,  and  with 
his  knowledge  make  lasting  and  valu- 
able improvements,  it  being  the 
father's  intention  that  they  shall  re- 
side thereon  during  his  life,  receive 
the  proceeds,  keep  up  repairs  and  pay 
taxes,  and  at  his  death  the  daughter 
to  take  a  life-estate,  with  remainder 
to  her  children,  there  is  no  advance- 
ment, and  the  ancestor  may  make  a 
different  disposition  from  that  in- 
tended.    Fiscus   V.    Moore,    121   Ind. 


558 


INDIANA    PROBATE    LAW, 


§  33^ 


As  evidence  of  the  donor's  intention  proof  of  his  declarations 
on  the  subject  at  or  near  the  time  when  the  money  or  other  prop- 
erty was  turned  over  to  the  child  may  be  made." 

The  presumption  is  that  a  conveyance  of  land  made  voluntarily 
by  a  father  to  his  child  is  intended  to  constitute  an  advancement 
and  the  burden  is  upon  the  child  to  show  that  it  was  not.^-  But 
a  deed  made  upon  sufficient  money  consideration  stated  therein 
does  not  raise  such  a  presumption/^ 

The  acceptance  by  an  heir  of  a  note  from  the  ancestor  indorsed 
"being  the  share  of  my  estate  I  intend  her  to  have,"  and  specify- 
ing that  it  is  an  advancement  to  the  heir,  does  not  bar  the  heir 
from  a  share  in  the  estate  at  the  ancestor's  death,  nor  show  any 
release  by  such  heir  of  all  rights  and  claims  on  the  estate. ^^ 


547,  23  N.  E.  362,  7  L.  R.  A.  235.  A 
mere  secret  intention  of  the  father, 
to  treat  the  money  paid  as  a  debt, 
would  not  be  effectual  as  against  the 
son  nor  as  against  his  creditors  to 
overcome  the  presumption  that  it 
was  to  be  an  advancement.  Higham 
V.  Vanosdol,  125  Ind.  74,  25  N.  E. 
140.  An  advancement,  in  legal  con- 
templation, is  the  giving  bj'  a  parent 
to  a  child,  by  way  of  compensation, 
of  the  whole  or  a  part  of  that  which 


ment  between  the  father  and  the  son 
in  order  to  constitute  money  paid  by 
the  former  for  the  benefit  of  the  lat- 
ter an  advancement,  but  in  order 
that  money  so  paid  should  constitute 
a  debt,  the  contemporaneous  facts 
and  circumstances  must  make  it  ap- 
pear that  it  was  understood  and  in- 
tended at  the  time  to  be  a  debt.  Hig- 
ham V.  Vanosdol,  125  Ind.  74,  25  N. 
E.  140.  Where  a  mother  conveys 
land    to    her    son,    who    gives    notes 


it   is  supposed   the  child  will  be   en-     secured  by  a  mortgage  for  the  pay- 


titled  to  on  the  death  of  the  parent 
or  person  making  the  advancement. 
Ruch  v.  Biery,  110  Ind.  444,  11  N.  E. 
312;  Daugherty  v.  Rogers,  119  Ind. 
254,  20  N.  E.  779,  3  L.  R.  A.  847n. 
A  voluntary  conveyance  of  land  by 
a  parent  to  one  of  his  children  is 
presumed  to  have  been  intended  as 
an  advancement,  and  the  burden  of 
showing  that  it  was  not  so  intended 
rests  upon  the  person  who  asserts  it 
to  be  aything  else.  Joyce  v.  Hamil- 
ton, 111  Ind.  163,  12  N.  E.  294;  Hig- 
ham V.  Vanosdol,  125  Ind.  74,  25  N. 


ment  of  the  price  after  her  death  to 
her  other  children  and  to  her  grand- 
children, his  share  as  heir  to  be  de- 
ducted therefrom,  the  transaction 
operates  as  an  advancement.  Brun- 
son  V.  Henrv,  140  Ind.  455,  39  N.  E. 
256. 

"  Hinshaw  v.  Security  Trust  Co., 
—  Ind.  App.  — ,  93  N.  E.  567. 

"  Stauffer  v.  Martin,  43  Ind.  App. 
675,  88  N.  E.  363. 

"  Newell  V.  Newell,  13  Vt.  24 ;  Ki- 
ger  V.  Terry,  119  N.  Car.  456,  26  S. 
E.    38;    Stauffer   v.    Martin,    43    Ind. 


E.  140;  Scott  v.  Harris,  127  Ind.  520,     App.  675,  88  N.  E.  363. 

27    N.    E.    150.      It   is    not    necessary        "  Binns  v.   Dazey,   147  Ind.  536,  44 

that  there  should  have  been  an  agree-     N.  E.  644. 


§    ^T^y  DISTRIBUTION LEGACIES DISCHARGE.  559 

The  heir  may  contract  to  pay  interest  on  an  advancement, 
akhough  ordinarily  interest  will  not  be  charged  upon  advance- 
ments. The  agreement  to  pay  interest  during  the  lifetime  of  the 
donor  does  not  convert  the  advancement  into  a  debt.  An  ad- 
vancement is  not  to  be  treated  as  borrowed  capital  drawing  inter- 
est. One  of  its  incidents  is  that  it  shall  be  valued  as  of  the  date 
when  it  was  received,  but  it  is  not  to  be  considered  and  settled 
until  after  the  death  of  the  ancestor  regardless  of  when  it  was 
made.^^ 

§  337.    Advancements,  how^  reckoned,  the  statute. — If  any 

child  or  other  lineal  descendant  of  a  deceased  person  shall  have 
been  advanced  by  the  deceased,  by  settlement  or  portion  of  real 
or  personal  estate,  the  value  thereof  shall  be  reckoned  with  that 
part  of  the  surplus  of  the  personal  estate  which  shall  remain  to  be 
distributed  among  the  children ;  and  if  such  advancements  be 
equal  or  superior  to  the  amount  which  would  be  distributed  to 
such  child  as  his  share  of  such  surplus  and  advancement,  then 
such  child  or  descendant,  or  those  representing  either  of  them, 
shall  be  excluded  from  any  share  in  the  distribution  of  such  sur- 
plus. But  if  such  advancement  be  not  equal  to  such  amount, 
such  child  or  descendant,  or  those  taking  as  their  representatives, 
sliall  be  entitled  to  receive  so  much  only  as  shall  be  sufficient  to 
make  all  the  shares  of  all  those  entitled  to  be  equal  as  near  as  can 
be  estimated.^"  The  maintaining,  or  educating,  or  giving  money 
to  a  child,  without  a  view  to  a  portion  or  settlement  in  life  shall 
not  be  deemed  an  advancement  within  the  meaning  of  the  last 
preceding  section." 

"  Slaughter    v.    Slaughter,    21    Ind.  lowed  her  by  law,  and  the  debts  and 

App.    641,    52    N.    E.    994;    Moale    v.  expenses   of   administration,  the   sur- 

Cutting,     59     Md.     510;     Osgood    v.  plus  and  the  advancements  are  to  be 

Breed's  Heirs,  17  Mass.  356;  Miller's  aggregated,    and    the    shares    of    the 

Appeal,  31  Pa.  St.  2>2,7.  children   equalized   as  nearly  as  may 

"Burns'  R.  S.  1908,  §2929;  Barnes  be    under    the    several    provisions    of 

V.    Allen,   25    Ind.    222.      The   widow  the  statute  on  that  subject.     Ruch  v. 

is     excluded     from     participation     in  Biery,  110  Ind.  444,  11  N.  E.  312. 

advancements.       After     she     receives  "Burns'  R.  S.  1908,  §  2930;  Willetts 

one-third     of     what     remains,     after  v.  Willetts,  19  Ind.  22;  Ruch  v.  Biery, 

paying   the   five   hundred   dollars   al-  110    Ind.    444,    11    N.    E.    312.     If   a 


56o 


INDIANA    PROBATE    LAW 


§    Zi7 


The  subject  of  advancement  is,  in  this  state,  regulated  exclu- 
sively by  statute,  and  under  the  statute  there  can  be  no  such  thing 
as  an  advancement  to  a  husband  or  wife.  Advancements  are 
confined  to  children  and  their  descendants.  Advancements  are 
not  part  of  the  personal  estate  of  a  decedent;  therefore,  after 
paying  the  debts  and  expenses  of  administration,  and  giving  to 
the  widow  the  absolute  allowance  made  her  by  law  and  one-tliird 
of  what  remains,  the  surplus  and  advancements  are  to  be  aggre- 
gated, and  the  shares  of  the  children  equalized  as  nearly  as  may 
be,  according  to  the  provisions  of  the  above  statute. 

But  one  who  has  received  by  way  of  advancement  more  than 
his  share  of  the  estate  cannot  be  required  to  refund  any  part  for 
the  purpose  of  equalizing  the  shares  of  the  others.^* 

While  the  question  of  advancements  may  be  determined  in  a 
proceeding  to  partition  a  decedent's  real  estate,  yet,  as  this  statute 
makes  the  personal  estate  the  primary  fund  from  which  advance- 
ments should   be   equalized,    such   personal   estate,   if   sufficient, 


transaction  between  father  and  son 
amounts  to  an  advancement  at  the 
time  it  takes  place,  it  cannot  after- 
ward be  converted  into  a  debt  with- 
out the  intervention  of  some  new 
consideration.  Higham  v.  Vanosdol, 
125  Ind.  74,  25  N.  E.  140.  Money 
borrowed  from  the  estate  by  an  heir 
may  be  treated  as  an  advancement  in 
an  action  brought  by  the  heirs  for  a 
portion  of  the  decedent's  estate  after 
the  estate  is  settled.  New  v.  New, 
127  Ind.  576,  27  N.  E.  154.  Where 
a  father  furnishes  money  to  his  son, 
and  purchases  land,  and  causes  it  to 
be  conveyed  to  his  son  without  any 
contemporaneous  understanding  or 
agreement  concerning  the  repayment 
of  the  purchase-money,  no  resulting 
trust  arises,  nor  does  the  son  pre- 
sumably become  the  debtor  of  his 
father.  The  presumption  is  that  the 
amount  paid  was  an  advancement 
from  the   father  to  the  son,  and  the 


burden  of  proof  is  upon  the  party 
who  asserts  that  it  is  something  else. 
Iligham  v.  Vanosdol,  125  Ind.  74,  25 
X.  E.  140. 

''Where  a  will  shows  that  it  was 
the  intention  of  the  testator  to  make 
an  equal  distribution  of  his  estate, 
and  some  of  the  distributees  have  re- 
ceived more  than  the  others,  the  lat- 
ter are  entitled  to  a  sum  sufficient  to 
put  them  on  an  equal  footing  with 
the  former,  with  interest  thereon,  in 
addition,  from  the  date  of  the  testa- 
tor's death  until  payment  made,  if 
there  are  sufficient  assets  for  that 
purpose  left  after  the  payment  of 
the  debts  of  the  deceased  and  the 
costs  of  administration;  but  the  dis- 
tributees who  have  received  greater 
amounts  than  their  co-distributees 
cannot  be  made  to  refund  in  order  to 
bring  about  such  equalization.  Clark 
V.  Helm,  130  Ind.  117,  29  N.  E.  568,  14 
L.  R.  A.  716n. 


§337  DISTRIBUTION LEGACIES DISCHARGE.  56 1 

should  first  be  resorted  to  for  that  purpose  so  as  to  leave  the 
real  estate  unburdened." 

A  father  may  make  advancements  to  his  daughter  by  paying 
for  land  and  having  the  same  conveyed  to  her  husband,""  and  this 
even  without  the  knowledge  or  consent  of  the  daughter  and  no 
trust  is  thereby  created  in  the  husband  for  her  benefit.^^ 

Where  advancements  have  been  made  an  equal  distribution  of 
the  estate  cannot  be  made  by  the  administrator  until  such  ad- 
vancements have  been  brought  into  hotchpot,  and  in  this  state, 
whether  such  advancement  has  been  made  in  real  or  personal 
estate,  its  value  shall  be  reckoned  with  that  part  of  the  personal 
estate  remaining  for  distribution,  excluding  the  distributive  share 
of  tlie  widow  or  widower,  the  doctrine  of  advancements  applying 
onlv  to  children  and  lineal  descendants  of  the  decedent. 

Bringing  into  hotchpot  means  that  the  advancements  made, 
taken  at  their  value  at  the  time  they  were  made,  must  be  added 
to  the  total  amount  in  hand  for  distribution  to  children  and  lineal 
descendants,  and  this  total  divided  by  the  number  of  distributive 
shares  going  to  the  children  and  such  descendants.  This  fixes  the 
amount  of  each  distributive  share.  Then  from  the  shares  of  those 
advanced  shall  be  deducted  the  value  of  the  particular  advance- 
ment. 

To  bring  into  hotchpot  does  not  mean  that  the  party  advanced 
shall  return  the  property  received  in  kind,  or  even  that  he  shall 
relinquish  his  interest  therein,  but  only  that  its  value  shall  be 
reckoned  against  him  in  the  distribution.  In  no  instance  can  the 
party  be  compelled  to  refund  what  he  has  received,  but  unless  he 
consent  to  bring  it  into  hotchpot  and  take  his  share  upon  an  equal 
division  of  the  estate,  he  will  not  be  entitled  to  participate  in  the 
distribution. •- 

The  party  advanced  having  his  choice  whether  to  keep  what  he 
has  and  relinquish  his  claim  to  more,  or  to  come  into  hotchpot. 

"Barnett  v.  Thomas,  36  Ind.  App.  =' Meredith    v.    Meredith,    150    Ind. 

441.  75  N.  E.  868,  114  Am.  St.  385.  299.  50  N.  E.  29. 

="  Lewis    V.    Stanley,    148    Ind.    351,  "  Grattan  v.  Grattan,  18  111.  167,  65 

45  X.  E.  693.  47  N.  E.  677;  Heath  v.  Am.    Dec.    726;    Jackson  v.    Jackson, 

Carter,  20  Ind.  App.  83,  50  N.  E.  318.  28    Miss.    674,    64    Am.    Dec.     114; 

36 — pp.0.  L.wv. 


^62  INDIANA    PROBATE    LAW.  §    338 

has  the  right  to  wait  before  choosing  until  the  vaUie  of  the  estate 
has  been  determined."^ 

§  338.  Advancements  in  testate  estates. — As  a  general  rule 
where  one  dies  testate  the  doctrine  of  advancements  does  not 
apply,  even  in  cases  where  the  will  does  not  dispose  of  the  entire 
estate.-*  And  though  the  testator  may  have  made  advancements 
before  making  his  will,  they  will  not  be  charged  against  the 
donee  unless  so  provided  in  the  will,"  it  being  said,  "It  is  true 
that  when  a  will  is  made  all  previous  advancements  are  ex- 
tinguished unless  the  same  are  saved  by  the  will ;  and  this  is  held 
upon  the  ground  tliat  the  testator  has  graduated  his  legacies  with 
reference  to  such  prior  advancements."*'^ 

But  when  a  testator  provides  in  his  will  that  his  proj^erty  shall 
descend  the  same  as  if  he  had  made  no  will,  that  is,  as  though 
he  had  died  intestate,  prior  advancements  are  to  be  taken  into 
account  in  this  division  of  his  estate."'  And  where  he  directs  cer- 
tain gifts,  or  loans  he  may  have  made  to  be  deducted  to  equalize 
the  shares  of  legatees  or  devisees,  they  must  be  treated  as  ad- 
vancements, though  they  would  not  have  constituted  advance- 
ments had  the  testator  died  intestate."  The  distinction  between 
advancements  and  the  ademption  of  legacies  must  not  be  lost 
sight  of.  It  is  explained  as  follows :  "Where  one  in  loco  parentis 
gives  a  legacy  as  a  portion,  and  afterwards  advances  in  the  nature 
of  a  portion  to  the  same  person,  such  advancement  is  presumably 
an  ademption  of  the  legacy;  but  a  gift  before  the  making  of  the 

IMarston  v.  Lord,  65  N.  H.  4,  17  Atl.  88   Mo.    Z2,7 ;   Trammel    v.    Trammel, 

980;  Taylor  v.  Reese,  4  Ala.  121.  148  Ind.  487,  47  N.  E.  925. 

"'Knight  V.  Oliver,  12  Gratt.  (Va.)  =«  Trammel    v.    Trammel,    148    Ind. 

ZZ;     Earnest    v.    Earnest,    5    Rawle  487,  47  N.  E.  925. 

(Pa.)  213.  ='Raiford   v.   Raiford,   6   Ired.   Eq. 

"Green     v.     Speer,    Z7     Ala.     532;  (N.    Car.)    490;    Stewart  v.    Stewart, 

Biedler  v.  Biedler,  87  Va.  300,  12  S.  15  Ch.     Div.  539;  Trammel  v.  Tram- 

E.  753 ;  Huggins  v.  Huggins,  71  Ga.  mel,  148  Ind.  487,  47  N.  E.  925. 

66.  =^*  Porter's   Appeal,  94   Pa.   St.  332; 

"■^  Jones     V.     Richardson,     S     Mete.  Black  v.  Whitall,  9  N.  J.  Eq.  572,  59 

(]\Iass.)     247;     Camp    v.     Camp,     18  Am.    Dec.    423;    Darne   v.    Lloyd,    82 

Hun  (X.  Y.)  217;  Turpin  v.  Turpin.  Va.  859,  5  S.  E.  87,  3  Am.  St.  123. 


339 


DISTRIBUTION LEGACIES DISCHARGE.  563 


will,  not  charged  therein  as  an  advancement,  cannot  be  so  treated 
in  the  distribution  of  the  estate."^® 

A  testamentary  direction  for  the  deduction  of  a  debt  from  a 
legacy  cannot  be  avoided  by  the  legatee  by  showing  that  the  testa- 
tor was  mistaken  as  to  the  existence  of  the  debt,  or  as  to  the 
amount  of  it.^°  Nor  can  the  recitals  in  a  will  as  to  advancements 
be  disputed.''^  Xor  can  parol  evidence  be  heard  to  show  that  an 
advancement  was  intended  as  an  ademption  of  a  legacy.^- 

§  339.  As  to  the  order  of  distribution. — The  filing  of  a  final 
settlement  account  by  an  executor  or  administrator  confers  juris- 
diction upon  the  court  to  hear  and  determine  all  matters  pertain- 
ing or  incidental  to  the  final  settlement  of  the  estate.  No  other 
petition  or  pleading  than  the  final  report  filed  is  necessary  to  give 
the  court  jurisdiction  of  the  distribution  of  the  surplus.  Such 
jurisdiction  results  as  an  incident  to  the  final  settlement,  and  the 
hearing  of  claims  to  the  surplus  of  an  estate  is  usually  a  very 
summary  and  informal  proceeding.  Issues  may  be  formed  upon 
adverse  claims  of  that  character,  but  in  a  jurisdictional  sense  it 
is  not  necessary  that  they  should  be.^'  Where  an  application  is 
made  for  an  order  upon  an  administrator  to  pay  over  a  sum  of 
money  out  of  a  fund  which  remains  in  his  hands  for  distribution, 
to  one  who  claims  as  a  distributee,  no  jury  is  allowable.  Such  a 
proceeding  is  regarded  as  equitable  in  its  nature,  the  court  having 
the  authority  to  take  into  account  any  proper  matter  of  set-off, 
such  as  advancements,  or  the  like,  which  ought  to  be  deducted 
from  the  share  of  a  distributee.'*  In  the  case  of  conflicting  claims 
to  a  distributive  share  of  an  estate  in  the  hands  of  the  clerk  of  the 
court,  it  becomes  the  duty  of  the  court  to  determine  to  which  of 
the  claimants  the  money  should  be  paid,  and  a  large  discretion  is 

^Woerner   .\m.   Law  Admin.,§  553.  "Jones   v.   Jones,    115   Ind.   504,   18 

'"  Estate    of    Eichelberger,    135    Pa.  X.  E.  20. 

St.  160,  19  Atl.  1006.  "  Sherwood     v.     Thomasson,     124 

"  McAlister  v.   Butterfield,  31   Ind.  Ind.  541,  24  X.  E.  334.     When,  upon 

25.  the  settlement  of  an  estate,  there  is 

""Clendening    v.    Clymer,    17    Ind.  money    in    court    for    distribution,    a 

155.  petition    filed  by  a   claimant   thereof, 


564  INDIANA  PROBATE.  LAW.  §  339 

allowed  such  court  in  hearing  all  the  facts  and  circumstances  in 
reference  to  the  matter  in  controversy.^^ 

On  a  petition  for  distribution,  all  who  are  interested  in  the 
estate  should  be  made  parties,  and  the  action  of  the  court  upon 
such  petition  is  summary.  No  formal  pleadings  are  required,  no 
issues  necessary,  the  matter  being  heard  by  the  court  without 
the  intervention  of  a  jury.^*'  And  upon  such  hearing,  the  final 
report  of  the  administrator,  setting  out  the  names  of  the  heirs 
and  distributees,  and  the  share  of  each  in  the  fund,  is  prima  facie 
proof  of  heirship  and  the  amount  due."  The  law  in  force  at 
the  death  of  the  decedent  governs  the  distribution  of  the  estate 
in  the  hands  of  his  administrator.^^ 

Where  administration  on  the  same  estate  is  pending  in  two 
jurisdictions,  the  assets  in  one  should  be  used  to  pay  the  cred- 
itors in  that  jurisdiction,  before  any  surplus  can  be  ascertained 
for  distribution  in  the  other.  The  domiciliary  jurisdiction  con- 
trols the  final  distribution.^" 

Where  a  distributee  is  a  minor,  his  legal  guardian  is  the  only 
proper  person  to  receive  his  distributive  share  of  an  estate.  It  is 
error  to  pay  such  share  to  one  acting  as  attorney  or  agent  for 
such  minor,  for  the  reason  that  a  minor  is  not  competent  to  ap- 
point an  agent  or  attorney  for  such  purpose.*"     And  when  an 

which  shows  that  he  is  entitled  there-  al  sense  it  is  not  necessary  that  they 

to,  ought  not  to  be  struck  out.     Rob-  should  be. 

erts  V.  Huddleston,  93  Ind.  173.  ''  Beal  v.  State,  77  Ind.  231. 

"' Roberts    v.    Huddleston,    93    Ind.  ^  Brown  v.    Critchell,   110   Ind.   31, 

173.  7  N.  E.  888,  11  N.  E.  486.   The  court 

''Henson  v.  Ott,  7  Ind.  512;  Mur-  saying  in  this  case,  "It  is  also  a  well 

phy  V.  Tilly,  11   Ind.  511;   Tapley  v.  accepted    legal    proposition,    that    all 

McGee,    6    Ind.    56;    Jones    v.    Jones,  the    property    of    a    deceased    person 

115  Ind.  504,  18  N.  E.  20;  Sherwood  descends,    or    is    otherwise    disposed 

V.  Thomasson,  124  Ind.  541,  24  N.  E.  of,  according  to  the  law  in  force  at 

334.      Jurisdiction    over    the    subject  the   time  of   his   death,   except   in   so 

results    as    an    incident    of    the    final  far  as  he  may  have  made  a  dift'erent 

settlement,  and  the  hearing  of  claims  provision  by  his  will." 

to  the  surplus  of  an  estate  is  usually  ""  Spraddling    v.     Pipkin,     15     Mo. 

a   very   summary   and   informal   pro-  118;  In  re  Welles  Estate.  161  Pa.  St. 

ceeding.    Issues  may  be  formed  upon  218,   28    Atl.    1116;    Prentiss    v.    Van 

adverse  claims,  but  in  a  jurisdiction-  Ness,  31  Vt.  95. 

'"Tapley  v.  McGee,  6  Ind.  56. 


§    339  DISTRIBUTION LEGACIES DISCHARGE.  565 

executor  or  administrator  is  also  guardian  of  a  distributee  of  the 
estate,  he  may  pay  to  himself,  in  the  one  capacity,  money  he 
holds  in  the  other  capacity.  Where  such  two-fold  relation 
exists,  the  rule  is  that  after  the  time  limited  for  the  settlement 
of  an  estate  the  court  will  adjudge  the  ward's  proportion  of  the 
property  of  such  estate  to  be  in  the  executor's  or  administrator's 
hands  in  his  capacity  as  guardian.^^ 

Where  a  distributee  is  an  infant  under  guardianship,  the  name 
of  the  guardian  should  be  stated  in  the  order  of  distribution, 
and  a  payment  to  such  guardian  will  release  the  administrator.^^ 

The  court,  upon  hearing  of  the  proof,  shall  order  the  distribu- 
tion by  the  clerk,  executor  or  administrator  among  the  parties 
applying  and  proving  their  titles  to  their  respective  shares  in 
such  surplus,  and  if  any  surplus  remains  undistributed,  it  shall  be 
paid  into  and  retained  in  court  until  such  persons  as  shall  not 
have  applied  and  proved  their  interest  in  such  surplus  shall  ap- 
pear as  aforesaid  and  make  such  proof,  when  further  distribution 
shall  be  ordered  by  the  court.  If  it  shall  appear  to  the  court  that 
any  person  claiming  an  interest  in  such  surplus  is  an  infant  or  of 
unsound  mind,  and  has  no  guardian,  the  court  may  appoint  a 
guardian  ad  litem  to  appear  for  such  person  and  protect  his  in- 
terest in  the  distribution  of  such  surplus.^^ 

An  executor  or  administrator  should  only  make  distribution 
of  the  surplus  of  an  estate  under  order  of  the  proper  court.  If 
he  pays  out  the  money  of  the  estate,  or  otherwise  parts  with  the 

''  Burtch  V.  Thorn,  7  Ind.  508.  tion  need  not  aver  that  she  had  not 

^  Sankey    v.    Sankey,    6    Ala.    607;  abandoned  her  husband  and  was  not 

Henry  v.  State,  9  Mo.  778;  Hinckley  living  in  adultery  at  his  death.    Sher- 

V.  Harriman,  45  Mich.  343,  7  N.  W.  wood  v.  Thomasson,  124  Ind.  541,  24 

907,  N.  E.   334.     An  application   for  dis- 

*^  Burns'  R.  S.  1908,  §  2931.  In  de-  tribution  of  the  surplus  of  an  estate 

termining  to  whom  money  paid  into  is  not  triable  by  jury.     Sherwood  v. 

court    for    distribution    belongs    it    is  Thomasson,    124   Ind.   541,   24   N.    E. 

proper  to   consider  the  amount  each  334.     A   widow    of   a   decedent   is   a 

heir  may  have  received.     Roberts  v.  competent  witness  on  an   application 

Huddleston,  93  Ind.   173.     A  petition  for  a   distribution  of  the  surplus   of 

by  a  widow   for  payment  to  her  of  an  estate.     Sherwood  v.  Thomasson, 

her  share  of  an   estate  for  distribu-  124  Ind.  541,  24  N.  E.  334. 


566  INDIANA  PROBATE  LAW,  §  339 

assets,  to  the  distributees,  on  his  own  responsibility,  and  thereby 
leaves  insufficient  means  in  his  hands  for  the  necessities  of  the 
estate,  he  is  guilty  of  waste,  and  is  not  entitled  to  relief." 

A  distributee  is  a  person  who  is  entitled  under  the  statutes  of 
distribution  to  the  personal  estate  of  one  who  has  died  intestate, 
or  to  a  share  of  the  same."  The  order  of  distribution  should  in- 
dicate to  whom  the  distributive  shares  should  be  paid,  and  if  the 
order  is  made  after  due  notice,  it  will  protect  the  administrator 
in  making  payments  according  to  the  directions  in  the  order,"*® 

And  a  bona  fide  payment  made  under  such  order  to  an  as- 
signee, or  attorney  in  fact  of  a  distributee  named  in  the  order,  is 
a  sufficient  compliance  with  the  order. ^' 

The  order  of  distribution  is  not  a  payment,  nor  until  actual 
payment  to  those  entitled  is  the  administrator  discharged,  or  the 
fund  in  his  hands  exonerated.  Under  the  order,  the  distributee 
has  his  remedy  for  the  share  due  him,  either  against  the  personal 
representative,  or  the  fund  itself.  Nothing  short  of  an  actual 
payment  of  some  sort  will  relieve  the  fund  from  his  claim. ^'^ 

The  distributive  share  of  one,  deposited  with  the  court  upon 
the  death  of  such  person,  should  be  paid  to  the  executor  or  ad- 
ministrator of  such  distributee,  and  not  to  his  heirs.*® 

The  order  of  distribution  should  not  direct  the  administrator 
to  apply  the  share  of  a  distributee  to  the  payment  of  a  debt  due 
to  him  from  the  distributee.^" 

"Egbert  v.  Rush,  7  Ind.  706;   Mc-  Redf.    (N.  Y.)    461;  Appeal  of  Lex, 

Clure  V.  McClure,  19  Ind.   185.     See  97  Pa.  St.  289. 

Stokes  V.  Goodykoontz,  126  Ind.  535,  '' Clapp  v.  Meserole,  38  Barb.    (N. 

26  N.  E.  391.  Y.)    661;    Pollock   v.   Buie,   43   Miss, 

*"  Henry  v.   Henry,  9  Ired.   L.    (N.  140;    McCracken   v.    Graham,    14   Pa, 

Car.)  278.  St.  209. 

^'Harlow   v.   Harlow,   65   Me.   448;  *"  Turner  v.  Campbell,  34  Ind.  317. 

Sparhawk  v.  Buell,  9  Vt.  41 ;  Sanders  '"  Kidd  v.  Porter,  13  Ala.  91 ;  Stand- 

V.  Loy,  61  Ind.  298.    The  final  settle-  ley  v.  Langley,  25  Miss.  252.    An  ad- 

ment  is  a  judicial  proceeding,  a  judg-  ministrator    is    liable   to   garnishment 

ment  of  a  court  of  record  having  ju-  by  a  creditor  of  a  legatee  or  distribu- 

risdiction  over  the  subject-matter  and  tee   of    the   estate,    and   the    unascer- 

the  parties,  and  therefore  cannot  be  tained  share  of  such  debtor  may  thus 

attacked  collaterally.  be    applied    to    the    payment    of    the 

"  Tillson   V.    Small,   80   Me.   90,    13  debt,  and  an  order  for  payment  there- 

Atl.    402;    Marshall    v.    Hitchcock,    3  of  binds   a   subsequent  administrator 


§    340  DISTRIBUTION LEGACIES DISCHARGE.  567 

A  judgment  of  the  court  setting  aside  an  order  of  distribution, 
is  not  a  final  judgment  from  which  an  appeal  will  lie.'' 

§  340.  As  to  shares  of  minors  without  guardian. — That 
where  there  is  now  in  or  hereafter  may  come  into  the  hands  of 
the  clerk  of  any  court  in  this  state,  money  due  to  any  minor  in  an 
amount  not  exceeding  one  hundred  dollars,  and  said  minor  is 
without  a  guardian,  said  minor  by  his  petition  without  the  inter- 
vention of  a  guardian  ad  litem,  and  without  a  next  friend,  may 
in  his  own  name,  make  application  in  writing  to  the  judge  of  said 
court  asking  an  order  directing  said  clerk  to  pay  said  money 
direct  to  said  minor  and  said  judge,  if  satisfied  that  it  will  be  to 
the  benefit  of  such  minor  to  have  said  money  so  paid  to  said 
minor,  the  court  shall  make  its  order  directing  its  clerk  to  pay  to 
said  minor  said  sum  of  money  or  any  part  thereof  and  the  receipt 
of  said  minor  to  the  clerk  will  be  a  sufficient  voucher  to  the  clerk 
and  he  shall  be  discharged  and  released  from  all  liability  thereon 
for  any  sum  or  all  of  said  money  so  paid  such  minor.'' 

Any  receipt  given  to  any  clerk  for  money  paid  as  provided  in 
the  foregoing  section  shall  be  binding  upon  such  minor,  his  heirs 

or  assigns.'^ 

Whenever  any  sum  of  money,  not  exceeding  one  thousand 
dollars,  shall  be  paid  into  any  court  in  this  state  for  the  use  of 
any  minor  or  insane  person,  and  there  shall  be  no  guardian 
qualified  to  receive  and  receipt  for  the  same,  the  court  may,  in  its 
discretion,  order  such  sum  of  money  to  be  deposited  in  any  sav- 
ings bank  organized  under  this  act,  to  the  credit  of  any  such 
minor  or  insane  person ;  and  such  sum,  and  the  dividends  there- 
on, shall  not  be  withdrawn  from  such  savings  bank  except  upon 

so  that  he   cannot,  in  the   settlement  must  be   made  the  basis  of   a   claim 
of  his  trust,  take  credit  for  payment  against  his  estate,  and  cannot  be  con- 
thereof  to  such  distributee  or  legatee,  sidered  in  a  proceeding  to  distribute 
Simonds  V.  Harris,  92  Ind.  505.     An  the  estate.     Carroll  v.  Swift,  10  Ind. 
agreement    by    a    husband    with    his  App.  170,  Z1  N.  E.  1061. 
wife,  that  if  she  would  join  him  in  "Wood  v.  Wood,  51  Ind.  141. 
deeds   of  conveyance  to  his   real  es-  '""■  Burns'  R.  S.  1908,  §  2932. 
tate  he  would  allow  her  at  his  death  "'  Burns'  R.  S.  1908,  §  2933. 
one-third  of  all  his  personal  property, 


568  INDIANA  PROBATE  LAW.  §  34I 

the  order  of  said  court,  or  until  a  guardian  shall  have  been  law- 
fully appointed  for  such  minor,  or  until  the  disability  of  such 
insane  person  shall  be  declared  to  be  removed  by  some  compe- 
tent court,  or  a  guardian  shall  have  been  appointed.''* 

§  341.  Court  may  order  bond  to  refund. — In  making  such 
order  of  distribution  the  court  may  require  of  the  distributees 
respectively,  before  receiving  their  shares,  to  file  in  the  office  of 
such  clerk  a  bond  with  sufficient  surety  payable  to  the  state  of 
Indiana,  to  be  approved  by  the  court  or  clerk,  conditioned  for  the 
refunding  of  their  ratable  proportions  of  the  estate  to  any  heir 
who  may  afterwards  appear ;  but  no  heir  shall  bring  suit  on  such 
bond  unless  he  was  a  minor,  insane,  or  a  non-resident  of  this  state 
at  the  time  of  such  distribution. °^ 

The  statute  requires  a  legatee  or  distributee  to  give  bond,  con- 
ditioned to  refund  his  ratable  proportion  of  the  estate  if  neces- 
sary, but  the  failure  of  the  executor  or  administrator  to  take 
such  bond  will  not  release  the  legatee  or  distributee  from  his 
liability  to  refund  when  necessary  for  the  payment  of  debts, 
legacies  or  claims.^® 

An  administrator  who  makes  distribution  without  judicial  di- 
rection is  personally  liable  to  distributees  of  whose  existence  he 
had  no  knowledge.  ^^ 

The  bond  provided  in  this  statute,  however,  is  only  for  the 
benefit  of  persons  under  disabilities. 

§  342.  Payment  before  final  settlement. — Any  person  en- 
titled to  any  legacy,  or  to  a  distributive  share  of  the  estate  of  any 

"  Burns'  R.  S.  1908,  §  3400.  bond,  as  required,   for  the  return  of 

°°  Burns'  R.  S.  1908,  §  2934.     Heirs  the   money   distributed,   in   case   it  is 

or  legatees  may  be  liable  to   refund  needed  to  pay  debts,  is  an  informality 

what  they  have  received  for  the  pay-  which  will  not,  in  the  absence  of  any 

ment   of   debts   although   no   bond   is  reasonable    objection,    invalidate    the 

executed.      Smith   v.    Smith,    76    Ind.  judgment  as  to  the  parties  in  court. 

236.  Chapell  v.  Shuee,  117  Ind.  481,  20  N. 

'"Smith    V.     Smith,    76    Ind.    236;  E.  417. 
Stokes  V.  Goodykoontz,  126  Ind.  535,         "  Lawrason    v.    Davenport,    2    Call 

26    N.    E.    391.     The    failure    of   the  (Va.)  95. 
court    to    require    the    heirs    to    give 


342 


DISTRIBUTION LEGACIES DISCHARGE.  569 


deceased  person,  may  at  any  time  previous  to  the  settlement  of 
such  estate  apply  to  the  court,  either  in  person  or  by  guardian, 
after  giving  reasonable  notice  to  the  executor  or  administrator, 
to  be  allowed  to  receive  a  portion  of  such  legacy  or  distributive 
share. ^^ 

If  it  appear  to  the  court  that  there  be  at  least  one-third  more 
of  assets  in  the  hands  of  such  executor  or  administrator  or  in 
court  than  will  be  sufficient  to  pay  all  debts  and  legacies  against 
the  estate  then  known,  such  court  may,  in  its  discretion,  allow 
such  portion  of  such  legacy  or  distributive  share  to  be  advanced 
as  it  may  deem  proper,  upon  satisfactory  bond  being  executed  to 
such  executor  or  administrator,  with  sufficient  penalty  and  surety 
for  the  return  of  any  portion,  with  interest  whenever  necessary, 
for  the  payment  of  debts,  legacies  or  claims,  or  to  equalize  the 
share  and  legacies  among  those  entitled  thereto."^ 

As  a  rule  the  heirs  are  not,  as  a  matter  of  right,  entitled  to 
distribution  until  after  the  payment  of  the  debts  and  the  settle- 
ment, and  under  the  above  statute,  unless  the  assets  of  the  estate 
exceed  by  one-third  the  known  debts  and  legacies  against  the 
estate,  the  court  ought  not  to  require  the  money  to  be  distributed 
in  advance.**" 

The  failure  to  require  a  bond  is  an  informality,  and  does  not 
release  the  legatee  from  liability  to  refund  when  necessary.^^ 

''Burns'  R.  S.  1908,  §  2902.    In  an  him  is  not  equal  to  the  amount  al- 

application     under     this     section     the  lowed  by  law  as  exempt  from  execu- 

court  may  inquire  into  advancements  tion.     Fiscus  v.  Fiscus,  127  Ind.  283, 

made     to     heirs     by     the     decedent.  26  N.  E.  831. 

Chapell  V.  Shuee.  117  Ind.  481,  20  N.  ""Hayes    v.    Matlock,    27    Ind.    49; 

E.  417.     If  money  is  voluntarily  ad-  Moore  v.    State,  49  Ind.   558;   Chan- 

vanced  to  distributees  without  an  or-  dler  v.  Morrison,  123  Ind.  254,  23  N. 

der   of  court  it  cannot  be  recovered  E.  160. 

back.      Egbert   v.    Rush,    7    Ind.    706.  "Chapell  v.  Shuee,  117  Ind.  481,  20 

See  Smith  v.  Smith,  76  Ind.  236.  X.   E.  417;   Smith  v.   Smith,  16  Ind. 

'"Burns'  R.  S.  1908,  §  2903.    A  dis-  236;  Stokes  v.  Goodykoontz,  126  Ind. 

tributee,   against   whom   the   adminis-  535,26  N.  E.  391;  Mazelin  v.  Rouyer, 

trator  holds  an  unsatisfied  judgment  8  Ind.  App.  27,  35  N.  E.  303.    Under 

for  a  sum  greater  than  the  distribu-  the  provisions  of  the  statute  the  cir- 

tee's  distributive  share,  is  not  entitled  cuit  court  may,  in  its  discretion,  upon 

to     such     share,     although,    being    a  a  proper  petition,  at  any  time  previ- 

householder,   the   property  owned  by  ous  to  the  settlement  of  an  estate,  al- 


S7^  INDIANA    PROBATE    LAW.  §    343 

No  formal  pleadings  are  necessary  under  this  last  statute  to 
secure  the  partial  distribution  there  provided  for.  The  applica- 
tion is  a  summary  one  and  is  addressed  to  the  discretion  of  the 
court,  and  should  be  granted  only  in  a  clear  case.  A  partial  dis- 
tribution, in  advance  of  the  final  settlement  of  the  estate  is  not 
allowed  as  a  matter  of  right.  The  condition  of  the  estate  can 
generally  be  approximately  ascertained  by  the  court  from  the  re- 
port of  the  executor  or  administrator,  and  unless  the  assets  ex- 
ceed by  one-third  the  known  debts  and  legacies,  the  court  ouglit 
not  to  order  such  advance  payment  to  distributees,  and  even  upon 
a  proper  application  no  distribution  should  be  ordered  except 
upon  the  filing  of  the  bond  required  by  this  statute."- 

The  bond  provided  for  in  the  above  statute  rests  upon  a  valu- 
able consideration,  and  is  enforcible.®^ 

§  343.  The  payment  of  legacies. — A  legacy  is  a  gift  of  per- 
sonal property  made  by  will,  and  may  be  either  specific  or  gen- 
eral. A  general  legacy  embraces  pecuniary  gifts,  as  such  gifts 
as  are  measured  by  quantity  merely,  while  a  specific  legacy  is  a 
gift  of  some  particular  property  so  described  as  to  be  identified 
and  distinguished  from  all  other  of  its  kind ;  and  such  legacy  can 
only  be  satisfied  by  the  delivery  to  the  legatee  of  the  identical 
thing  bequeathed,  and  if  it  is  not  to  be  found  among  the  tes- 
tator's effects  the  bequest  fails.^* 

The  payment  of  legacies  is  postponed  to  the  payment  of  all 

low  a  partial  distribution  to  heirs  of  or  other  jurisdictional  facts;  but  the 

moneys  in  the  hands  of  the  executor  facts  showing  want  of  jurisdiction  in 

or    administrator;    and    in    such   pro-  the    court    to    act    upon    the    petition 

ceedings  it  has  jurisdiction  to  ascer-  must  be  brought  forward  by  answer, 

tain     the     amount    of     advancements  Chapell  v.  Shuee,  117  Ind.  481,  20  N. 

made  by  the  decedent.     A  petition  in  E.  417. 

the  circuit  court,  by  an  administrator        ^-  Hayes    v.    Matlock,    27    Ind.    49 ; 

and    heirs,    asking   the    ascertainment  Chapell    v.    Shuee,    117    Ind.    481.    20 

of    advancements    and    an    order    for  N.    E.    417;    Miller   v.    Duy,   36   Ind. 

partial    distribution   of    funds   in   his  521 ;  Tapley  v.  McGee,  6  Ind.  56. 
hands,  is  not  bad  because  it  is  silent        °^  Chandler    v.    Morrison,    123    Ind. 

upon    the    subject    of   the   decedent's  254,  23  N.  E.  160. 

domicile,  the  issuing  of  letters  of  ad-         '"'*  Williams  Exrs.,  993-4;  Roquet  v. 

ministration,  the  location  of  property  Eldridge,  118  Ind.  147,  20  N.  E.  72,2,. 


343 


DISTRIBUTION LEGACIES DISCHARGE.  5/1 


the  testator's  debts.  The  claims  of  all  creditors  must  be  first  dis- 
charged. Then  if  there  be  assets  of  the  estate  left  sufficient  for 
that  purpose,  the  legatees  are  entitled  to  satisfaction  of  their  be- 
quests. If  the  legacies  cannot  all  be  satisfied,  owing  to  insuffi- 
cient assets,  the  law  usually  directs  a  certain  order  in  which  they 
shall  abate.  The  statute  provides  that  after  the  expiration  of 
one  year  from  the  granting  of  letters,  the  executor  or  adminis- 
trator may,  if  the  estate  be  solvent,  discharge  the  specific  legacies 
and  pay  the  general  legacies  bequeathed  by  any  will  if  there  be 
sufficient  assets;  and  if  there  shall  not  be  sufficient  assets  to  pay 
the  general  legacies,  then  an  abatement  thereof  shall  be  made  in 
proportion  to  the  amount  of  each."^ 

It  is  the  duty  of  an  executor  or  administrator  with  the  will 
annexed,  after  paying  all  the  debts  of  the  estate  and  the  expenses 
of  the  administration,  to  pay  the  legacies  provided  in  the  will  of 
the  testator,*'*  and  there  can  be  no  distribution  until  such  legacies 
are  paid.  The  executor  or  administrator,  with  the  will  annexed, 
is  the  proper  person  to  pay  a  legacy,  and  for  a  failure  to  pay  it  he 
may  be  sued  upon  his  bond,  and  such  suit  may  be  maintained 
without  any  previous  order  of  court  directing  the  payment  of  the 
legacy,  and  without  the  removal  of  the  officer  from  his  trust 
previous  to  the  commencement  of  the  suit;  but  no  such  suit  will 
lie  until  after  the  estate  is  finally  settled  and  it  is  ascertained  that 
the  legacy  will  not  be  needed  for  the  purposes  of  the  estate.  A 
demand  for  its  payment  or  delivery  should  then  be  made  by  the 
legatee  previous  to  bringing  the  suit." 

"^^  Burns'  R.  S.  1908,  §  2904;  Rogers  '"Crist  v.  Crist,  1  Ind.  570,  50  Am. 

V.  State,  26  Ind.  App.  144,  59  N.  E.  Dec.   481n;   Heady  v.   State,   ex   rel, 

334.        '  60   Ind.  316;   Highnote  v.   White,  67 

"•Burns'    R.    S.    1908,    §    2901,    8th  Ind.  596;  Gould  v.  Steyer,  75  Ind.  50; 

clause.     A  debt  due  the  estate   from  Fillingin   v.    Wylie,   3   Ind.    163.     An 

a  legatee  may  be  retained  out  of  his  executor  may  recover  from  a  legatee 

distributive  share  of  the  surplus  pro-  or  heir  money  that  is  improperly  paid 

ceeds  of  the  estate  and  applied  to  the  to  him  on  an   erroneous   estimate  as 

payment    of    a    debt    due    the    estate  to  the  amount  due.     Smith  v.  Smith, 

from  such  heir,  although  such  indebt-  76  Ind.  236 ;   Stokes  v.  Goodykoontz, 

edness   arose  after  the  death  of   the  126  Ind.  535,  26  N.  E.  391. 
decedent.    New  v.  New,  127  Ind.  576, 
21  N.  E.  154. 


572  INDIANA  PROBATE  LAW.  §  344 

The  right  to  a  legacy  is  fixed  by  will,  and  the  executor  is  not, 
as  a  rule,  bound  to  pay  it  until  all  the  debts  of  the  estate  have 
been  paid.  He  does  no  wrong  to  the  legatee  in  delaying  payment 
until  then,  and  unless  in  the  wrong  no  action  will  lie  against  him 
for  the  allowance  and  recovery  of  the  legacy.  In  such  action  it 
is  necessary  for  the  complaint  to  show  a  payment  of  all  the  debts, 
that  the  executor  has  placed  himself  in  the  wrong  by  denying  the 
legatee's  claim  after  demand,  and  that  there  is  a  reason  for  ap- 
pealing to  the  court  to  establish  the  legacy."^ 

Where  all  of  a  testator's  property  is  disposed  of  by  his  will, 
there  can  be  no  surplus  for  distribution  under  the  statute.  The 
surplus  remaining  after  the  payment  of  debts  and  specific  lega- 
cies passes  to  the  residuary  legatees  as  such,  and  not  to  the 
heirs.«° 

After  paying  all  the  debts  of  the  estate  and  the  legacies  pro- 
vided for  in  the  will,  the  executor  should  deliver  what  remains  of 
the  estate  in  his  hands  to  the  residuary  legatee,  if  one  is  provided 
in  the  will,  otherwise  that  portion  of  the  estate  will  pass  as  in- 
testate and  must  be  distributed  to  the  heirs  and  next  of  kin. 

§  344.  Legatee's  title,  executor's  consent. — The  title  of  a 
legatee  to  his  legacy  is  not  perfected  until  its  payment  or  delivery 
to  him  by  the  executor,  and  he  cannot  take  legal  possession  of  it 
until  he  has  obtained  the  consent  of  the  executor.'"  The  doc- 
trine of  the  law  is  thus  stated  in  a  leading  work:  ''The  whole 
personal  property  of  the  testator  devolves  upon  his  executor.  It 
is  his  duty  to  apply  it,  in  the  first  place,  to  the  payment  of  the 

•**  Heady    v.     State,    60    Ind.     316;  quire   whether  the   remedy  is  at  law 

Story  Eq.,  §  555.     In  Fickle  v.  Snepp,  or  in   equit}',   for  if   facts  are  stated 

97   Ind.   289,   49  Am.   Rep.   449n,   the  warranting    a    recovery,    a    recovery 

court  says :   "The  English  rule  is  that  will  be  awarded,  no  matter  whether 

a  legacy  cannot   be   recovered   in   an  the  case  made  is  cognizable  in  equity 

action   at   law,  but   may  be  inforced  or  at  law." 

by  a   suit   in   equity.     The  American  ^^  Branch  v.  Holcraft,  14  Ind.  237. 

cases  are  not  harmonious,  but  there  '"  Crist  v.  Crist,  1  Ind.  570,  50  Am. 

are  very  many  in   favor  of  the   rule  Dec.  481n ;  Leach  v.  Prebster,  35  Ind. 

that  an  action  at  law  will  lie  for  the  415;    North-Western    Conference    v. 

collection    of    a    legacy.      Under    our  Myers,  36  Ind.  375. 
statute  it  cannot  be  important  to  in- 


§    344  DISTRIBUTION LEGACIES DISCHARGE.  573 

debts  of  the  deceased ;  and  he  is  responsible  to  the  creditors  for 
the  satisfaction  of  their  demands,  to  the  extent  of  the  whole 
estate,  without  regard  to  the  testator's  having,  by  the  will,  di- 
rected that  a  portion  of  it  shall  be  applied  to  other  purposes. 
Hence,  as  a  protection  to  the  executor,  the  law  imposes  the  neces- 
sity that  every  legatee,  whether  general  or  specific,  and  whether 
of  chattels  real  or  personal,  must  obtain  the  executor's  consent  to 
the  legacy  before  his  title  as  legatee  can  be  complete  and  perfect. 
Hence,  also,  the  legatee  has  no  authority  to  take  possession  of  his 
legacy  without  such  assent,  although  the  testator,  by  his  will, 
expressly  directed  that  he  shall  do  so ;  for  if  this  were  permitted, 
a  testator  might  appoint  all  his  effects  to  be  thus  taken  in  fraud 
of  his  creditors.  It  follows  from  the  rule  respecting  the  neces- 
sity of  the  executor's  assent,  that  if,  without  it,  the  legatee  takes 
possession  of  the  thing  bequeathed,  the  executor  may  maintain 
an  action  of  trespass  or  trover  against  him ;  so,  although  a  chat- 
tel, real  or  personal,  specifically  bequeathed,  be  in  the  custody  or 
possession  of  the  legatee,  and  the  assets  be  fully  adequate  to  the 
payment  of  debts,  he  has  no  right  to  retain  it  in  opposition  to  the 
executor;  by  whom,  in  such  case,  an  action  will  lie  to  recover 

H,  however,  the  executor  should,  without  cause,  refuse  to 
assent  to  a  legacy  the  legatee  is  entitled  to  relief. 

A  legatee,  whether  his  legacy  be  specific,  general,  or  residuary, 
has  no  right,  until  the  estate  is  settled,  without  the  consent  of  the 
executor,  to  withdraw  a  portion  of  the  assets  of  the  estate,  liable 
for  the  payment  of  the  debts  of  the  testator,  except  as  is  pro- 
vided by  statute. '- 

Where  no  trust  is  created  by  the  will,  there  must  be  some 

'•Williams    Executors,    982.     Lega-  v.  Whitman,  41   Ind.  App.  99,  83  N. 

tees  are  not  entitled  to  the  possession  E.  520. 

of  either  general  or  specific  legacies  "  Holland  v.  Holland,  131  Ind.  196, 
without  the  consent  of  the  executor.  30  X.  E.  1075 ;  Gould  v.  Steyer,  75 
Crist  V.  Crist,  1  Ind.  570,  50  Am.  Dec.  Ind.  50 ;  Fickle  v.  Snepp,  97  Ind.  289, 
481n.  Legatees  cannot  claim  the  49  Am.  Rep.  449n.  If  a  legatee  is  in- 
possession  of  legacies  until  after  the  debted  to  the  estate,  such  indebted- 
debts  of  the  testator  are  paid.  High-  ness  should  be  retained  out  of  his 
note  V.  White,  67  Ind.  596;  Whitman  legacy,   and   the  claims  of  the   estate 


574  INDIANA  PROBATE  LAW.  g  345 

limit  to  the  time  in  which  a  legatee  may  maintain  an  action  for 
the  enforcement  of  his  legacy;  it  is,  therefore,  held  that  the 
fifteen-year  limitation  applies  to  such  actions/^ 

If  there  be  several  executors,  the  assent  of  any  one  is  suffi- 
cient.^* 

An  executor  cannot  be  compelled  to  deliver  property  specific- 
ally bequeathed,  or  pay  general  legacies  until  all  other  debts  of 
the  testator  are  discharged,  but  he  may  do  so  after  the  lapse  of 
one  year  from  the  granting  of  his  letters  if  the  estate  be  clearly 
solvent;  or  he  may  even  sooner  than  this  satisfy  a  specific  be- 
quest by  a  delivery  of  the  property  bequeathed  if  the  legatee 
entitled  thereto  will  secure  the  redelivery  thereof  to  the  executor 
if  such  property  should  be  needed  for  the  payment  of  debts  or 
for  equalizing  legacies  under  the  will.'^ 

§  345.  As  to  void  and  lapsed  legacies. — For  various  rea- 
sons legacies  may  become  incapable  of  discharge  and  satisfaction 
by  the  executor  in  the  specific  terms  of  the  will,  as  where  they 
were  void  from  the  beginning  because  there  never  was  a  legatee 
to  take,  or  where  they  become  inoperative  from  some  cause  aris- 
ing after  the  will  was  made,  as  the  death  of  the  legatee  before 
the  testator,'*'  or  the  marriage  before  the  testator's  death  of  a 
legatee  to  whom  a  legacy  is  given  so  long  as  she  remains  unmar- 
ried," or  a  legacy  to  a  corporation  whose  charter  expires  before 
the  death  of  the  testator ;'**  or  where  the  legatee  renounces  the 
legacy.'^''  In  such  cases  it  becomes  important  to  know  what  ap- 
plication to  make  of  the  property  or  funds  included  in  such  lega- 
cies. 

have  preference  over  the  general  judg-  v.  Smith,  l(i  Ind.  236;  Fickle  v.  Snepp, 

nient  creditors  of  the  legatee.     Koons  97    Ind.    289.    49    Am.     Rep.     449n; 

V.  Alellett,  121  Ind.  585,  23  N.  E.  95,  Whitman  v.   Whitman,  41   Ind.   App. 

7   L.   R.   A.   231n ;   Fiscus   v.   Fiscus,  99,  83  N.  E.  520. 

127  Ind.  283,  26  N.  E.  831;  New  v.  ™  Gray  v.  Bailey,  42  Ind.  349;  Max- 
New,  127  Ind.  576,  27  N.  E.  154.  well  v.  Featherston,  83  Ind.  339;  Col- 

''  Witz  V.  Dale,  129  Ind.  120,  27  N.  lins  v.  Collins,  126  Ind.  559,  25  N.  E. 

E.  498.  704,  28  N.  E.  190. 

'*  Boone    v.    Dyke,    3    T.    B.    ]\Ion.  ''  Andrew  v.  Andrew,  1  Colly  686. 

(Ky.)  530;  Murphree  v.  Singleton,  37  "  Crum   v.    Bliss.  47   Conn.   592. 

Ala.  412.  ™  Pendleton    v.    Kinnej',    65     Conn. 

"Burns'  R.  S.  1908,  §  2785;  Smith  222,  32  Atl.  331. 


§    345  DISTRIBUTION LEGACIES DISCHARGE.  575 

In  the  absence  of  any  contrary  direction  or  disposition  in  the 
will,  or  some  provision  of  statute,  such  legacies  will  lapse  and 
fall  into  the  residuum  and  pass  to  the  residuar}^  legatee  if  there 
is  one,  and  if  there  is  no  residuary  legatee  appointed  to  take, 
such  residue  will  pass  to  the  next  of  kin  for  distribution  as  in- 
testate estate.  The  only  provision  of  our  statute  upon  this  sub- 
ject is  that  where  the  bequest  is  to  a  descendant  of  the  testator 
and  such  legatee  shall  die  in  the  lifetime  of  the  testator  leaving 
a  descendant  such  legacy  shall  not  lapse  but  shall  vest  in  such 
surviving  descendant.^"  And  the  word  ''descendant"  in  this 
statute  has  reference  exclusively  to  a  lineal  descendant,  an  heir 
in  the  direct  descending  line,  and  does  not  apply  to  kindred  of 
the  collateral  line.^^  But  a  testator  may  by  express  provisions  in 
his  will  prevent  the  lapse  of  a  legacy,  because  the  law  favors  the 
vesting  of  bequests  under  a  will,  and  will  consider  and  hold 
them  as  having  vested  where  it  can  be  done  consistently  with 
legal  principles  and  the  intention  of  the  testator. ^^  The  direction 
that  the  legacy  shall  not  lapse  in  case  the  legatee  die  before  the 
testator  is  sufficient  to  prevent  a  lapse  if  some  other  recipient 
therefor  is  pointed  out  by  the  will;^^  but  the  mere  declaration 
that  a  bequest  shall  not  lapse  is  not  of  itself  sufficient  to  prevent 
such  lapse,  because  the  only  mode  of  excluding  him  whom  the 
law  constitutes  the  successor  to  property  in  the  absence  of  an}^ 
testamentary  disposition  of  it,  is  to  give  such  property  to  some 
one  else.^*  It  is  an  established  rule  that  where  a  bequest  is 
simply  to  one  person,  and,  in  case  of  his  death,  to  another,  the 
primary  legatee,  surviving  the  testator,  takes  absolutely;  the 
words  being  held  to  refer  to  a  death  in  the  lifetime  of  the  tes- 
tator.^^ 

^"Burns'  R.   S.  1908,   §  3127;   Cun-  "1  Jarman  on  Wills,  532;  Howard 

ningham  v.  Dungan,  83  Ind.  572.  v.  American  Peace  Soc,  49  Me.  288; 

'MVest  V.  West,  89  Ind.  529;  Baker  Cope  v.  Cope,  45  Ohio  St.  464,  15  N. 

V.  Baker,  8  Gray   (Mass.)    101.  E.  206:  Williams  Exrs.  (6  Am.  Ed.), 

'=  Ballard  v.   Camplin,   161    Ind.   16,  p.  1306. 

67  N.  E.  505.  ^2  Jarman  on  Wills,  752;  Wright  v. 

^Borgner  v.   Brown,   133  Ind.   391,  Charley,  129  Ind.  257,  28  N.  E.  706; 

33  N.  E.  92;  Ware  v.  Fisher,  2  Yeates  Borgner  v.   Brown,    133   Ind.  391,  33 

(Pa.)  578.  N.  E.  92. 


576 


INDIANA    PROBATE    LAW. 


346 


Where  it  appears,  however,  that  a  bequest  was  made  to  dis- 
charge some  duty  or  obhgation  resting  upon  the  testator,  the 
effect  will  be  to  preclude  a  lapse  of  the  bequest  although  the 
legatee  may  die  during  the  lifetime  of  the  testator.  The  rule 
is  well  settled  that  a  legacy  or  bequest  made  in  payment  of  a 
debt  does  not  lapse  by  the  death  of  the  legatee  prior  to  that  of 
the  testator,  and  this,  though  the  debt  may  have  been  barred  by 
the  statute  of  limitations  at  the  time  the  testator  executed  his 
will.'" 


§  346.  Different  kinds  of  legacies. — Legacies  are  usually 
general,  or  specific.  The  chief  distinction  between  them  is  that  a 
specific  legacy  singles  out  the  particular  thing  which  the  testator 
intends  the  legatee  to  have  without  regard  to  value,  while  a 
general  legacy  is  payable  out  of  the  general  assets  of  the  estate, 
regard  being  had,  as  an  element  of  the  gift,  either  to  quantity  or 
value."  Generally  where  the  thing  given  is,  by  the  terms  of  the 
bequest,  distinguishable  from  the  rest  of  the  estate  it  is  a  specific 
bequest.  It  must  be  so  described  as  to  be  capable  of  being  dis- 
tinctly pointed  out  from  the  mass  of  the  testator's  property.*'^ 


""2  Redfield  Wills,  161;  Ward  v. 
Bush,  59  N.  J.  Eq.  144,  45  Atl.  534; 
Ballard  v.  Camplin,  161  Ind.  16,  67 
N.  E.  505. 

'^  Bradford  v.  Haynes,  20  Me.  105; 
Wallace  v.  Wallace,  23  N.  H.  149; 
Abbott  Law  Diet.  Thus  a  gift  of 
"240  shares  of  stock"  in  a  certain 
bank,  the  testator  owning  a  greater 
number  of  srtch  shares,  is  a  general 
legacy,  because  the  particular  shares 
which  the  legatee  is  to  have  are  not 
pointed  out,  and  the  legacy  is  satis- 
fied by  the  transfer  of  any  of  the 
shares  of  such  stock  which  the  testa- 
tor owned,  to  the  required  number; 
but  a  gift  of  "all  the  money  left  in 
the  West  Side  Bank  after  carrying 
out  the  directions  in  the  first  three 
clauses  of  this  my  will,"  is  a  specific 
legacy,  which   the  legatee  is  entitled 


10  in  specie.  Tift  v.  Porter,  8  N.  Y. 
516;  Evans  v.  Hunter,  86  Iowa  413, 
53  X.  W.  277.  41  Am.  St.  503,  17  L. 
R.  A.  308. 

**■*  Tomlinson  v.  Bury,  145  Mass. 
346,  14  X.  E.  137,  1  Am.  St.  464; 
Dean  v.  Rounds,  18  R.  I.  436,  27  Atl. 
515,  28  Atl.  802.  Evans  v.  Tripp,  6 
]Madd.  91.  "A  gift  of  my  gray  horse," 
says  Leach,  V.  C,  "in  this  case,  will 
pass  a  black  horse,  which  is  not 
strictly  graj^  if  it  be  found  to  have 
been  the  testator's  intention  that  it 
should  pass  by  that  description ;  but 
if  the  testator  has  no  horse,  the  ex- 
ecutor is  not  to  buy  a  gray  horse." 
Says  Williams,  continuing  the  illus- 
tration used  by  Vice-Chancellor 
Leach,  supra :  "If  the  bequest  is  of 
'a  horse,'  and  no  horse  be  found  in 
the   testator's  possession   at  the  time 


§    346  DISTRIBUTION LEGACIES DISCHARGE.  577 

A  specific  legacy  is  in  some  respects  of  a  higher  grade  than 
general  legacies;  in  this,  at  least,  that  they,  of  all  the  legacies, 
shall  be  last  resorted  to  for  the  payment  of  the  liabilities  of  the 
estate. 

As  to  the  liability  of  specific  bequests  for  the  payment  of  debts, 
costs,  etc.,  the  rule  is  thus  declared :  "That  as  long  as  any  of  the 
assets  not  specifically  bequeathed  remain,  such  as  are  specifically 
bequeathed  are  not  to  be  applied  in  payment  of  debts,  although 
to  the  complete  disappointment  of  the  general  legacies."^® 

A  specific  legacy  is  not  subject  to  ademption  nor  is  liable  to 
abatement  until  the  general  legacies  are  exhausted,  and  it  confers 
upon  the  legatee  the  right  to  the  article  bequeathed,  in  specie.®" 

But  they  are  also  subject  to  the  disadvantage  of  having  no  re- 
course against  the  general  assets  of  the  estate,  and  should  the 
specific  thing  given  be  lost,  or  be  in  any  way  disposed  of  by  the 
testator  in  his  lifetime,  the  specific  legatee  can  have  no  recompense 
or  satisfaction.®^ 

It  v^ill  be  presumed  that  a  testator  intended  a  real  benefit  to 
one  named  as  a  legatee  in  his  will,  and  courts  will  therefore  in- 
cline to  construe  legacies  as  general  rather  than  specific  if  the 
language  of  the  will  permits  such  construction."" 

There  is  a  third  class  of  legacies,  known  by  the  name  given 
them  in  the  civil  law  as  demonstrative  legacies,  differing  from 
general  and  partaking  of  the  nature  of  specific  legacies  in  that 
they  are  not  liable  to  abate  with  general  legacies  upon  a  defi- 
ciency of  assets,  and  on  the  other  hand  differing  from  specific 
and  partaking  of  the  quality  of  general  legacies  in  so  far  as,  if 
the  fund  fail,  the  legatee  will  be  entitled  to  receive  the  legacy  out 
of  the  general  assets.  A  demonstrative  legacy  is  a  pecuniary 
legacy,  or  legacy  of  quantity,  the  particular  fund  or  personal 

of  his  death,  the  executor  is  bound,  "^  Armstrong's    Appeal,    63    Pa.    St. 

provided  the  state  of  the  assets  will  312;  Hood  v.  Haden,  82  Va.  588. 

allow  him,  to  procure  a  horse  for  the  ^  Giddings   v.    Seward,     16    N.    Y. 

legatee."  365;  Lake  v.  Copeland,  82  Tex.  464, 

"Corya  v.  Corya,  119  Ind.  593,  22  17  S.  W.  786;  Johnson  v.  Conover,  54 

N.  E.  3;  Williams  Exrs.  1473.  N.  J.  Eq.  ZZ2>,  35  Atl.  291. 

•M3  Am.  &  Eng.  Encyc.  Law,   12.  , 

37— Pro.  Law. 


578  INDIANA  PROBATE  LAW.  §  347 

property  being  pointed  out  from  which  it  is  to  be  taken  or  paid.^^ 
Residuary  legacies  are  those  bequests  by  which  a  testator  dis- 
poses of  what  is  left  of  his  estate  after  the  payment  and  satis- 
faction of  all  his  debts  and  prior  legacies.*^* 

It  is  only  what  remains  after  all  paramount  claims  upon  a 
testator's  estate  are  satisfied  that  passes  under  a  residuary  clause. 

§  347.  Out  of  what  fund  legacies  to  be  paid. — The  law  pre- 
sumes that  a  testator  intends  that  legacies  shall  be  paid  out  of  the 
personal  property,  as  this  class  of  property  is  the  primary  fund 
for  the  payment  of  all  debts  and  legacies.  Whether  this  was  or 
was  not  his  intention  must  be  ascertained  from  the  situation  and 
condition  of  his  affairs  a-t  the  time  he  made  the  will.  If  a  tes- 
tator, at  such  time,  has  abundant  personal  property,  the  legatee 
will  be  confined  to  the  personal  estate,  and  if  that  afterwards 
fails  the  legacy  fails,  unless  the  words  of  the  will  indicate  a  dif- 
ferent intention.®^ 

And  where  the  land  of  the  testator,  or  any  portion  of  it,  passes 
under  the  residuary  clause  of  his  will,  it  will  be  liable  to  sale  by 
the  executor  to  pay  specific  legacies,  as  they  are  by  the  statute 
classed  among  the  liabilities  of  the  estate.'''^  But  ordinarily  an 
executor  has  nothing  to  do  with  the  real  estate  devised  by  the 
testator,  unless  such  real  estate  may  be  needed  for  the  payment 
of  the  debts  of  the  testator.  Otherwise  the  devise  will  take  effect 
at  once  on  the  death  of  the  testator  without  any  inteiwening  act 
of  the  executor.^' 

"^  Woerner  Am.  Law  Admin.,  §  444.  In  an  action  by  legatees  to  have  cer- 

^  Thompson  v.  Thompson,  3  Dem.  tain  legacies  made  charges  upon  real 

(N.  Y.)   409;  Burke  v.  Stiles,  65  N.  estate    devised    to    other    parties,   the 

H.  163,  18  Atl.  657.  complaint  is  insufficient  if  it  does  not 

^'^  Coulter  V.  Bradley,  30  Ind.  App.  show  whether  the  estate  has  been  ad- 

421,  66  N.  E.  184;  Coulter  v.  Bradley,  ministered    upon,     and    settled,     and 

163  Ind.  311,  71  N.  E.  903;  Campbell  sliow    why    such    legacies    were    not 

v.    Martin,    87    Ind.    577;    Duncan    v.  paid    out    of    the    personal    property. 

Wallace,  114  Ind.  169,  16  N.  E.  137;  Longacre  v.   Stiver,  135  Ind.  584,  35 

Davidson  v.  Coon,  125  Ind.  497,  25  N.  N.   E.  900 ;    Coulter   v.   Bradley,    163 

E.  601,  9  L.  R.  A.  584n.  Ind.  311,  71  N.  E.  903. 

'« American  Cannel  Coal  Co.  v.  "Campbell  v.  Martin,  87  Ind.  577. 
Clemens,  132  Ind.  163,  31  N.  E.  786. 


§    347  DISTRIBUTION LEGACIES DISCHARGE.  579 

While  lands  not  specifically  devised  may,  in  the  absence  of  per- 
sonal property  sufficient,  be  held  liable  for  the  payment  of  lega- 
cies, the  rule  is  somewhat  different  when  the  land  passes  under  a 
specific  devise.  In  such  case  the  intention  to  so  charge  it  must  be 
manifest  from  the  will. 

Where  a  specific  devise  of  land  is  made,  and  a  general  legacy 
is  bequeathed  without  charging  the  legacy  upon  the  land  devised, 
it  is  then  incumbent  upon  the  legatee  who  seeks  to  charge  the 
land,  to  show  that  the  testator  had  no  personal  estate,  at  the  time 
the  will  was  executed,  out  of  which  the  legacy  could  be  paid. 
The  general  rule  is  that  where  the  provisions  of  the  will  can  be 
given  effect  without  burdening  the  land  specifically  devised,  it 
will  be  done,  and  this  implies  that  where'  there  is  a  specific  devise 
of  land  and  a  general  bequest  of  money,  and  no  express  charge 
upon  the  land,  the  land  is  not  burdened  unless  it  appears  that  the 
testator  impliedly  intended  that  the  land  should  be  charged,  and 
where  he  has  personal  estate  no  such  intention  can  be  implied  as 
against  the  specific  devisee.^^ 

And  further,  where  legacies  are  given  and  then  all  the  residue 
of  the  estate  both  real  and  personal,  such  legacies  will  be  charged 
on  the  land.^^ 

If  the  debts  of  a  testator  are  made  a  charge  upon  lands  de- 
vised, the  devisees,  by  accepting  the  devise,  do  not  become  per- 
sonally liable  for  such  debts.     The  same  rule  will  perhaps  apply 

''Davidson   v.   Coon,   125   Ind.  497,  press  terms,  or  the  intention  of  the 

25  N.  E.  601,  9  L.  R.  A.  584n;  Nash  testator    may   be    gathered    from   the 

V.  Taylor,  83  Ind.  347.  entire  will  taken  together.    It  is  firm- 

'*3  Jarman  Wills,  p.  426.    In  Nash  ly  established  that  a  charge  may  be 

V.  Taylor,  83  Ind.  347,  the  court  says :  implied    and    requires    no    particular 

"A      testator     may,     unquestionably,  form    of   words."     Citing   Lupton  v. 

charge  an  annuity  upon  land  devised,  Lupton,   2   Johns    Ch.    (N.   Y.)    614; 

and  in  such  a  case  the  devisee  takes  Ripple  v.  Ripple,  1  Rawle  (Pa.)  386; 

the   land  burdened  with   the   charge.  Davis's  Appeal,  83   Pa.   St.  348;   Gil- 

Where  a  devise  of  land  is  made  with  bert's  Appeal,  85  Pa.  St.  347;  Quinby 

such   a  burden,    the    devisee    cannot  v.  Frost,  61  Me.  11 ;  Heslop  v.  Gatton, 

hold  it  without  conforming  to  the  re-  71    111.    528;    Lindsey   v.    Lindsey,    45 

quirements    of    the    will.      A    charge  Ind.  552. 
upon  real  estate  may  be  made  in  ex- 


580  INDIANA  PROBATE  LAW.  §  347 

in  case  of  legacies,  unless  the  payment  of  the  legacies  by  the 
devisee  is  made  a  condition  of  the  devise.^ 

The  law  is,  that  a  gift  to  one  by  will  of  all  the  interest  the 
testator  has  as  a  mortgagee  of  real  estate,  is  a  bequest  of  per- 
sonal property  and  passes  no  interest  in  or  title  to  the  mortgaged 
land.=^ 

When  a  legacy  is  given  with  a  direction  in  the  will  that  it  is  to 
be  paid  by  one  to  whom  real  estate  is  devised,  such  real  estate  is 
charged  with  the  payment  of  the  legacy.  The  rule  is  the  same 
where  the  executor,  who  is  the  devisee  of  real  estate,  is  charged 
with  the  payment  of  the  legacy.^  And  if,  in  such  case,  the 
devisee  accepts  the  devise  he  becomes  personally  bound  to  pay 
the  legacy,  even  though  the  land  devised  to  him  is  less  in  value 
than  the  amount  of  the  legacy.  The  only  way  for  the  devisee  to 
escape  such  responsibility  is  to  refuse  to  accept  the  devise.*  But 
the  land  is  not  charged  by  a  mere  direction  to  the  devisee  to  pay 
a  legacy,  for,  unless  it  appears  from  the  will  that  it  was  the  tes- 
tator's intention  to  charge  the  land,  the  direction  is  merely  per- 
sonal and  the  devisee  is  only  bound  if  he  accepts  the  devise.^ 
Doubtful  words  in  a  will  are  not  to  be  construed  as  exempting 
the  personal  estate  of  a  testator  from  the  payment  of  legacies,  or 
of  charging  them  on  his  real  estate.® 

A  direction  in  a  will  that  the  testator's  widow  should  "be  en- 
titled to  a  living"  off  of  certain  land  devised  by  the  will  to  others 
creates  a  charge  on  such  land  to  the  extent  of  the  rents  and 

'Lofton    V.    Moore,    83    Ind.    112;  Landwehr,  43  Ind.  App.  724,  88  N.  E. 

Brown  v.  Knapp,  79  N.  Y.  136;  Hayes  105. 

V.  Sykes,  120  Ind.  180,  21  N.  E.  1080 ;  *  Williams  v.   Nichol,  47  Ark.  254, 

Porter   v.    Jackson,   95    Ind.   210,   48  1  S.  W.  243 ;  Bohn  v.  Barrett,  79  Ky. 

Am.  Rep.  704;  Watt  v.  Pittman,  125  378;    Eikman   v.    Landwehr,   43    Ind. 

Ind.  168,  25  N.  E.  191.  App.  724,  88  N.  E.  105. 

'  Cornett  v.  Hough,  136  Ind.  387,  35  '  Wright  v.   Denn,    10   Wheat.    (U. 

N.    E.   699;    Martin    v.     Smith,     124  S.)    204,  6  L.   ed.  303;   Penny's  Ap- 

Mass.  111.  peal,  109  Pa.  St.  323;  Nudd  v.  Pow- 

'  Brown  v.  Knapp,  79  N.  Y.  136;  2  ers,  136  Mass.  273;  Hamilton  v.  Por- 

Redfield     Wills,     209;     Olmstead    v.  ter,  63  Pa.  St.  332. 

Brush,   27    Conn.    530;     Eikman    v.  '  Geiger  v.  Worth,  17  Ohio  St.  564; 

Arnold  v.  Dean,  61  Tex.  249. 


§    34^  DISTRIBUTION LEGACIES DISCHARGE.  581 

profits  but  imposes  no  personal  liability  on  the  devisee;^  and  the 
same  is  true  where  the  testator  "charges  his  estate,"  with  the  pay- 
ment of  a  legacy.® 

If  a  legacy  is  made  a  charge  against  land  it  creates  an  equitable 
lien  which  may  be  enforced  against  the  land  after  final  settle- 
ment of  the  estate,®  but  an  action  will  be  barred  after  fifteen 
years.^° 

§  348.  Interest  on  legacies. — As  a  general  rule,  no  interest 
will  be  allowed  upon  legacies  made  payable  in  futuro  until  after 
the  day  of  payment;  and  where  no  time  of  payment  has  been 
specified,  the  legacy  will  draw  interest  only  after  the  expiration 
of  a  year  from  the  death  of  the  testator."  But  like  all  rules  this 
one  has  its  exceptions ;  one,  which  has  been  long  and  well  estab- 
lished, is  in  favor  of  the  minor  children  of  the  testator  where  no 
provision  has  been  made  by  the  will  for  their  maintenance  during 
their  minority.  Such  legacies  will  be  charged  with  interest  for 
the  support  of  such  minor  legatees.^^  And  where  a  legacy  is 
charged  upon  real  property,  and  no  day  of  payment  is  men- 
tioned in  the  will,  interest  will  be  given  from  the  testator's 
death."  From  the  authorities  the  following  propositions  have 
been  deduced:  First,  if  one  gives  a  legacy  charged  upon  lands 
which  yield  rents  and  profits,  and  there  is  no  time  of  payment 
mentioned  in  the  will,  the  legacy  will  carry  interest  from  the  tes- 
tator's death,  because  the  land  yields  profit  from  that  time; 
second,  if  a  legacy  be  given  out  of  personal  estate  consisting  of 
mortgages  carrying  interest,  or  stocks  yielding  profits,  it  seems  in 
this  case  the  legacy  shall  carry  interest  from  the  death  of  the 

'Commons   v.   Commons,    115    Ind.  —  Ind.  App.  — ,  94  N.  E.  799;  Clark 

162,  16  X.  E.  820,  17  N.  E.  271.  v.  Helm,  130  Ind.  117,  29  N.  E.  568, 

"Hayes  v.    Sykes,   120  Ind.   180,  21  14  L.  R.  A.  716n;  Roberts  v.  Malin, 

N.   E.    1080;   Funk  v.   Eggleston,   92  5  Ind.  18;   State  v.  Crossley,  69  Ind. 

111.  515,  34  Am.  Rep.  136.  203;    Case   v.    Case,   51    Ind.   277;   2 

*  Davidson   v.    Coon,    125    Ind.   497,  Williams  Executors,  1283. 

25  N.  E.  601,  9  L.  R.  A.  584n.  ^  Brown  v.  Knapp,  79  N.  Y.   136; 

"  Witz  V.  Dale,  129  Ind.  120,  27  N.  Mitchell  v.  Bower,  3  Vesey,  Jr.,  282. 

E.  498.  "  Maxwell  v.  Wettenhall,  2  P.  Wm. 

"  Brown    v.    Bernhamer,    159    Ind.  26. 
538,  65  X.  E.  580;  Lupton  v.  Coffel, 


582  INDIANA  PROBATE  LAW.  §  348 

testator/*  An  executor  is  personally  liable  for  interest  on  a 
legacy  where  he  has  improperly  kept  the  legatee  out  of  the  use 
of  it/° 

An  executor  cannot  claim  interest  on  a  legacy  payable  to  him- 
self where  he  had  money  in  his  control  out  of  which  the  legacy 
could  have  been  paid."  Where  interest  is  due  it  must  be  com- 
puted at  the  legal  rate,  whether  the  money  earned  that  or  not.^^ 
But  where  the  executor  has  trafficked  with  the  assets  of  the 
estate  he  may  be  charged  with  a  higher  rate,  and  even  with  com- 
pound interest.^^ 

Where  a  legacy  is  not  payable  until  the  happening  of  a  speci- 
fied contingency,  interest  will  not  begin  to  run  until  the  contin- 
gency occurs.^® 

The  testator  may  provide  that  interest  shall  begin  at  any 
time.'" 

Specific  legacies  do  not  come  within  the  general  rule  because 
they  are  considered  separated  from  the  general  estate  and  appro- 
priated to  the  legatee  from  the  time  of  the  testator's  death,  and 
whatever  produce  or  profit  accrues  upon  them  after  that  time 
belongs  to  the  legatee.  ^^ 

§  349.  Ademption  and  satisfaction  of  legacies. — Ademp- 
tion is  defined  to  be  the  payment  of  a  legacy  during  the  life  of  the 
testator,  or  some  act  of  his  which  renders  the  legacy  inoperative 
by  reason  of  the  testator  having  parted  with  the  subject  of  the 
bequest. '^ 

It  is  said,-^  a  legacy  is,  strictly  speaking,  adeemed  when  the 

"  Maxwell  v.  Wettenhall,  2  P.  Wm.  ="  Webster    v.    Hale,    8    Vesey,    Jr., 

26;  Stonehouse  v.  Evelyn,  3  P.  Wm.  410. 

252 ;  Spurway  v.  Glynn,  9  Vesey  483.  "'  Williams  Exrs.,  1423 ;  Graybill  v. 

^'Dufour  V.  Dufour,  28  Ind.  421.  Warren,  4  Ga.  528;  Welsh  v.  Brown, 

"=Re  Gerard,  1  Dem.   (N.  Y.)  244.  43  N.  J.  L.  ?)1 .    For  a  full  collection 

"Way  V.  Priest,  13  Mo.  App.  555.  of  cases  on  the  subject  of  interest  on 

^*  Kent  V.  Dunham,  106  Mass.  586 ;  legacies    and    distributive    shares,    see 

Calloway     v.     Langhome,     4     Rand,  note  to  Bullion  v.  Ribble,  87  Neb.  700, 

(Va.)    181.  128  N.  W.  32,  31   L.  R.  A.   (N.   S.) 

'"Valentine   v.    Ruste,   93    111.   585;  350. 

Dewart's  Appeal,  70  Pa.  St.  403.  =^  Anderson  Law  Diet. 

^  Woerner  Am.  Law  Admin.,  §  446. 


§    349  DISTRIBUTION LEGACIES DISCHARGE.  583 

thing  given  has,  by  some  act  of  the  testator,  ceased  to  exist  in 
the  form  in  which  it  is  described  in  the  will,  so  that  on  his  death 
there  is  nothing  answering  the  description  of  the  legacy  to  be 
given  to  the  legatee.  Ademption,  therefore,  can  only  happen  in 
cases  of  specific  legacies,  since  general  or  demonstrative  legacies 
are  not  dependent  upon  the  existence  of  specific  things,  and  are 
not  affected  by  the  destruction  or  alteration  of  the  subject  of  the 
gifts.^* 

There  is  a  distinction  to  be  observed  between  the  ademption 
and  the  satisfaction  of  legacies.  Satisfaction  is  where  the  tes- 
tator in  his  lifetime  takes  upon  himself  duties  he  has  imposed  on 
his  executor  in  his  will,  and  gives  the  legatee  what  he  has  be- 
queathed him  by  will,  thus  satisfying  the  legacy  himself,  leav- 
ing nothing  to  be  done  after  his  death  in  respect  to  such  legacy.^^ 
Satisfaction  is  in  substance  payment  in  the  lifetime  of  the  tes- 
tator and  is  applicable  to  all  classes  of  legacies. 

A  specific  legacy  is  adeemed  by  the  extinction  of  the  particular 
article  bequeathed.  In  such  case  ademption  becomes  solely  a 
question  of  identity;  and  when  the  property  bequeathed  is  lost, 
destroyed,  or  disposed  of  in  the  lifetime  of  the  testator,  or  its 
form  so  changed  that  it  cannot  be  identified  when  the  will  goes 
into  effect,  a  specific  legacy  is  said  to  be  adeemed.^*' 

A  distinction  exists  between  the  becjuest  of  a  thing  in  specie 
and  the  bequest  of  its  proceeds;  in  the  one  case  the  sale  of  the 
article  will  work  an  ademption  of  the  bequest,  in  the  other  it 
will  not." 

There  is  an  arbitrary  doctrine  which  originated  in  equity, 
sometimes  called  ademption  by  advancement,  in  which,  where  a 
father,  or  one  who  stands  in  loco  parentis  to  a  child  or  a  grand- 
child, having  by  will  given  such  child  a  legacy  afterwards,  in 

"Gilbreath  v.  Winter,  10  Ohio  64;  Johnson,  48  Ind.  1;  Roquet  v.  El- 
Smith's  Appeal,  103  Pa.  St.  559.  dridge,   118  Ind.   147,  20  N.   E.  7Z2,; 

^Burnham    v.     Comfort,    2>7    Hun  Clayton  v.  Akin,  38  Ga.  320,  95  Am. 

(N.  Y.)  216.  Dec.  393. 

''Starbuck  v.  Starbuck,  93  N.  Car.  "  McNaughton  v.  McNaughton,  34 
183 ;  Hoke  v.  Herman,  21  Pa.  St.  301 ;  N.  Y.  201 ;  Nooe  v.  Vannoy,  6  Jones 
Hood  V.  Haden,  82  Va.  588;  Smith's  Eq.  (N.  Car.)  185;  Warren  v.  Wig- 
Appeal,    103   Pa.    St.  559;   Weston  v.  fall,  3  Des.    (S.  Car.)   47. 


584  INDIANA  PROBATE  LAW.  §  349 

his  lifetime,  advances  such  child,  as  a  marriage  portion  or  other- 
wise, such  advancement  is  held  to  constitute  a  complete  ademp- 
tion of  the  legacy  whether  the  portion  so  advanced  was  larger 
than,  equal  to,  or  smaller  than  the  legacy.  This  doctrine  has 
been  censured  and  criticised  by  eminent  judges  and  law  writers 
of  high  authority."  But  as  Judge  Worden  of  our  state  Supreme 
Court  says :  "Whatever  may  be  thought  of  the  doctrine,  it  is 
thoroughly  established  in  English  and  American  jurispru- 
dence."-** 

The  rule  is  that  where  a  parent,  or  other  person  in  loco  paren- 
tis, bequeaths  a  legacy  to  a  child  or  grandchild,  and  afterward, 
in  his  lifetime,  give  a  portion,  or  makes  a  provision  for  the  same 
child,  or  grandchild,  without  expressing  it  to  be  in  lieu  of  the 
legacy,  if  the  portion  so  received,  or  the  provision  made,  be  equal 
to,  or  exceed  the  amount  of  the  legacy;  if  it  be>  certain  and  not 
merely  contingent;  if  no  other  distinct  object  be  pointed  out;  and 
if  it  be  ejusdem  generis,  then  it  will  be  deemed  an  ademption  of 
the  legacy.  The  ground  of  this  doctrine  seems  to  be,  that  every 
such  legacy  is  to  be  presumed  as  intended  by  the  testator  to  be  a 
portion  for  the  child  or  grandchild,  whether  so  called  or  not ;  and 
that,  if  he  afterward  advances  the  same  sum,  he  does  it  to  accom- 
plish his  original  object,  as  a  portion;  and  that  under  such  cir- 
cumstances it  ought  to  be  deemed  an  intended  satisfaction  or 
ademption  of  the  legacy,  rather  than  as  an  intended  double  por- 
tion.^" This  doctrine  of  presumed  or  constructive  ademption  is 
not,  however,  applicable  to  residuary  legacies;  for  it  has  been 
said  that  a  residue  is  always  changing.  It  may  amount  to  some- 
thing, or  be  nothing;  and  therefore  no  fair  presumption  can  arise 
of  its  being  an  intended  satisfaction  or  ademption. ^^     The  doc- 

^*  See  Story  Eq.  Jur.,  §§  1110,  1112,  after  having  made  a  bequest,  gives  a 

1113,     1118;     Williams    Exrs.,     1332;  portion  to  the  child  to  whom  the  be- 

Evans  v.    Beaumont,  4  Lea    (Tenn.)  quest  is  made  equal  to  or  in  excess 

599.  of   the   amount  bequeathed,   the   por- 

^'  Weston  V.  Johnson,  48  Ind.  1.  tion     given     and     the     legacy    being 

^"Weston  v.  Johnson,  48  Ind.   1;  2  ejusdem  generis.    Roquet  v.  Eldridge, 

Story's     Equity,     §     1111-1112.       An  118  Ind.  147,  20  N.  E.  733. 

ademption  results  where  a  parent  or  "2    Story's    Equity,    §    1115;    Clen- 

other  person  standing  in  loco  parentis,  dening  v.  Clymer,  17  Ind.  155. 


349 


DISTRIBUTION LEGACIES DISCHARGE.  58- 


trine  of  ademption  is  inapplicable  to  property  taken  by  descent; 
it  can  be  applied  only  to  property  taken  by  devise.  The  meaning 
of  the  word — to  take  away  or  extinguish — plainly  shows  its 
proper  application.  Besides,  the  doctrine  is  wholly  inconsistent 
with  the  doctrine  of  advancements  under  our  law  of  descent.^^ 
The  doctrine  of  ademption  by  advancement  is  applicable  only  to 
general  legacies,  and  cannot  be  practically  applied  to  specific  lega- 
cies ;  and  if  it  is  not  applicable  to  specific  legacies,  for  the  same 
reason  it  cannot  be  applied  to  specific  devises.  The  devise  of 
certain  specific  land  is  a  specific  devise;  in  fact,  all  devises  of  real 
estate  may  be  regarded  as  specific.  The  rule  of  law  in  this  state 
is  clear  that  the  doctrine  of  the  ademption  of  legacies  by  ad- 
vancements to  the  legatee  by  the  testator  in  his  lifetime  has  no 
application  to  specific  legacies  or  devises  of  real  estate.^^ 

But  where  the  testator,  in  his  lifetime,  makes  a  conveyance  to 
the  devisee,  of  lands  specifically  devised,  such  conveyance  is  both 
a  satisfaction  and  ademption  of  the  devise.^* 

While  true  as  a  general  rule  that  the  doctrine  of  ademption  by 
advancement  does  not  apply  to  specific  devises  or  legacies,  yet  if 
the  very  thing  devised  or  bequeathed  has  been  transferred  to  the 
devisee  or  legatee  in  the  lifetime  of  the  testator,  so  that  there 
will  be  nothing  left  for  the  will  to  operate  upon,  it  will  be  held 
an  effectual  ademption.^^  While  a  legacy  may  be  adeemed  by 
implication,  when  the  devisee  stands  in  loco  parentis  to  the  lega- 
tee, there  is  no  rule  of  law  that  prohibits  a  legacy  from  being 
satisfied  by  advancements,  by  express  agreement,  even  though 
the  legatee  be  a  stranger.^*^ 

'=  Clendening    v.    Clymer,    17    Ind.  "^  Marshall   v.   Rench,    3    Del.    Ch. 

155;  Stokesberry  v.  Reynolds,  57  Ind.  239;   Haselwood  v.   Webster,  82  Ky. 

425.'                     '  409;  Webb  V.  Jones,  36  N.  J.  Eq.  163. 

^Weston  V.   Johnson,    48    Ind.    1;  ""  Roquet  v.  Eldridge,  118  Ind.  147, 

Wigram   on  Wills,  339.     Whether  a  20   N.   E.   72>Z;   Swails  v.   Swails,  98 

legacy  be  specific  or  demonstrative,  if  Ind.  511. 

it  clearly  appears  that  the  particular  '"Robbins  v.  Swain,  7  Ind.  App. 
thing  or  fund  bequeathed  has  been  486,  34  N.  E.  670;  Richards  v.  Hum- 
irrevocably  delivered  over  to  the  phreys,  15  Pick.  (Mass.)  133;  Gray 
legatee  in  the  lifetime  of  the  testator,  v.  Bailey,  42  Ind.  349.  As  a  general 
the  legacy  is  adeemed.  Roquet  v.  El-  rule,  the  conveyance  of  property  by 
dridge,  118  Ind.  147,  20  N.  E.  7?>2,.  the    testator   to    a   legatee,    after   the 


586  INDIANA  PROBATE  LAW.  §  349 

Where  one  who  has  made  his  will  giving  a  legacy  to  a  child, 
afterwards,  during  life,  gives  a  portion  to,  or  makes  provisions 
for  such  child,  it  will  be  deemed,  even  if  not  so  expressed,  an 
ademption  or  satisfaction  of  the  legacy,  if  the  circumstances  in- 
dicate that  intention;  if  it  is  not  less  than  the  legacy;  if  it  is  cer- 
tain and  of  the  same  general  nature;  but,  if  the  difference  be- 
tween the  gift  inter  vivos  and  the  legacy  named  in  the  will  be 
large  and  important,  then  the  presumption  of  an  intention  to 
substitute  the  portion  for  the  legacy  ought  not,  and  will  not,  be 
allowed  to  prevail.^' 

In  regard  to  the  revocation  of  bequests  of  personal  estate  by 
ademption,  the  general  rule  is,  that  in  order  to  complete  the  title 
of  a  specific  legatee  to  his  legacy,  the  thing  bequeathed  must,  at 
the  death  of  the  testator,  remain  in  specie  as  described  in  the 
will,  otherwise  the  legacy  is  considered  as  revoked  by  ademption. 
The  intention  of  the  testator  is  immaterial  in  the  ademption  of 
specific  legacies,  because  the  subject  being  extinct  at  the  death  of 
the  testator,  there  is  nothing  upon  which  the  will  can  operate. ^^ 
The  principle  of  ademption  by  a  subsequent  portion  has  not  been 
applied  to  the  devises  of  real  estate,  and  it  has  been  decided  that 
it  does  not  apply  to  real  estate. ^^ 

execution  of  the  will,  is  to  be  treated  511;  Roquet  v.  Eldridge,  118  Ind.  147, 

as  an  ademption  of  the  legacy.     State  20  N.  E.  7ZZ. 

V.   Crossley,  69   Ind.  203.     The   doc-  ^Jarman   Wills,    172;    Raper    Leg- 
trine  of   ademption   is  not  applicable  acies,  329. 

to  residuary  legatees.     Clendening  v.  "2  Redf.   on  Wills,  441;    Clark  v. 

Clymer,  17  Ind.  155.     If  property  or  Jetton,    5     Sneed     (Tenn.)     229.      A 

money  is   received   from  the  testator  father    executed    a   will    devising    his 

in   full  of  all  claims  by  the  legatees  homestead  farm  to  two  of  his  sons, 

or    interest    in   his    estate,    it    adeems  To    his    four    other    children   he    be- 

the    estate    from   the   claims    of   such  queathed  five     hundred  dollars  each, 

legatees.     Gray  v.  Bailey,  42  Ind.  349.  to  be  paid  in  cash  and  to  be  in  full 

"State    V.    Crossley,    69    Ind.    203;  of    their    interests    in    the   homestead 

Weston  V.  Johnson,  48  Ind.  1 ;  Stokes-  farm.      The   will   contained   a    recital 

berry  v.  Reynolds,  57  Ind.  425;  Gray  that  the   devises    and    bequests    thus 

V.  Bailey,  42  Ind.  349.     The  doctrine  made    were    to    be    considered    as    a 

of  ademption  does  not  apply  to  spe-  disposition    of    the    homestead    farm 

cific  devises  of  real  estate,  nor  where  among    the    testator's    children,    and 

the    devisor    does    not    stand    in    loco  were  not  to  affect  any  other  interest 

parentis.      Swails    v.    Swails,   98   Ind.  or  estate.     Afterward,  and  during  the 


§    35C>  DISTRIBUTION LEGACIES DISCHARGE.  587 

The  bequest  of  a  mortgage  is  adeemed  if  the  mortgage  is  paid 
off  or  foreclosed  in  the  Hfetime  of  the  testator.*'^ 

The  doctrine  of  ademption  by  gift  or  satisfaction  in  the  Hfe- 
time of  the  testator  only  applies  where  the  donor  stands  in  loco 
parentis  to  the  legatee.  Where  the  legatee  is  a  stranger,  no  pre- 
sumption of  satisfaction  arises.*^  Money  paid  to  a  married 
woman  in  ademption  of  a  legacy  produces  the  same  legal  result 
as  if  she  were  unmarried.*" 

§  350.  Legacy  to  a  creditor. — There  is,  in  equity,  a  rule 
which  was  adopted  from  the  civil  law,  that  if  a  man  owes  a  debt, 
and  by  his  will  gives  to  the  creditor  a  legacy,  equal  to  or  greater 
in  amount  than  the  debt,  such  legacy  is  to  be  considered  as  a  sat- 
isfaction of  the  debt.  To  be  a  satisfaction  the  legacy  must  be 
certain  and  of  the  same  nature  as  the  debt.*^ 

The  rule  announces  a  doctrine  that  meets  with  much  disap- 
probation from  the  courts,  and  which  retains  its  position  as  a  rule 
by  force  of  precedent  rather  than  reason.  A  false  principle 
established  long  ago,  and  as  is  said  in  one  case :  'That  principle 
being  established,  successive  judges  have  said  they  cannot  alter 

testator's  lifetime,  the  devisees  of  the  married  woman,  in  ademption  of  a 
homestead  farm  furnished  their  legacy,  produces  the  same  legal  re- 
father  two  thousand  dollars,  out  of  suit  as  if  she  were  unmarried.  Ro- 
which  he  paid  each  of  the  four  le-  quet  v.  Eldridge,  118  Ind.  147,  20  N. 
gatees   five  hundred  dollars,   and   re-  E.  733. 

ceived    from   each   a   receipt,    as    fol-  ^"Gardner  v.   Hatton,    6    Sim.    93; 

lows:     "Received   from    William    B.  Beck  v.  McGillis,  9  Barb.  (N.  Y.)  35. 

Eldridge  five  hundred  dollars,  in  con-  *"  Swails   v.    Swails,    98    Ind.    511 ; 

sideration  of  my  interest  in  his  home-  Lj-ddon  v.  Ellison,  19  Beav.  565. 

stead    farm,    corresponding   with    his  "^Roquet  v.  Eldridge,  118  Ind.  147, 

last  will."     At  the  death  of  the  testa-  20  N.  E.  733. 

tor  the  homestead  farm  and  property  "  Hammond  v.  Smith,  33  Beav.  452 

worth  five  hundred  dollars  constitut-  Story's  Eq.  Jur.,  §§  1119,  1120,  1122 

ed  his  entire  estate.     Held,  that  the  Strong    v.    Williams,    12    Mass.    402 

legacies  wei-e  neither  specific  nor  de-  Fitch  v.  Peckham,   16  Vt.   150;  Rey- 

monstrative,     and     that     they     were  nolds  v.  Robinson,  82  N.  Y.  103,  37 

adeemed   and   satisfied    by    the    pay-  Am.  Rep.  555 ;  Horner  v.  McGaughy, 

ments  made  in  the  manner  disclosed.  62  Pa.   St.  189;  Heisler  v.  Sharp,  44 

Held,    also,    that    money    paid    to    a  N.  J.  Eq.  167,  14  Atl.  624. 


588  INDIANA  PROBATE  LAW.  §  350 

it.  But  what  they  have  done  is  to  rely  on  the  minutest  show  of 
difference  to  escape  from  that  false  principle."** 

The  tendency  to  get  rid  of  the  rule  is  even  stronger  in  the 
American  than  in  the  English  cases.*^ 

The  rule  can  be  enforced  only  in  chancery.  Such  testamen- 
tary provision  does  not  operate  as  a  satisfaction  of  the  debt  on 
merely  legal  grounds.*® 

But  where  the  debt  is  made  an  express  charge  on  the  legacy, 
or  the  intention  is  expressed  that  the  legacy  is  given  in  satisfac- 
tion of  the  debt;  or  the  legacy  is  given  under  an  agreement,  ex- 
press or  implied,  between  the  debtor  and  creditor  that  the  de- 
mand shall  be  so  paid,  the  legacy  will  extinguish  the  debt.  The 
creditor  in  such  case,  however,  may  elect  not  to  take  the  legacy, 
otherwise  he  will  be  precluded  from  recovering  his  debt.*' 

The  courts  are  quick  to  accept  any  fact  or  circumstance  from 
which  it  may  be  inferred  that  the  testator  had  a  different  inten- 
tion, and  by  any  reasonable  construction  of  the  will  overthrow 
the  presumption  raised  by  the  rule. 

The  presumption  in  favor  of  a  satisfaction  of  the  debt  is  com- 
pletely rebutted  where  there  is  a  direction  in  the  will  to  the 
executor  to  pay  all  debts  and  legacies.*^  And  the  American  cases 
hold  that  a  direction  to  pay  debts  alone,  is  sufficient  to  overcome 
the  rule.*® 

The  rule  is  reversed  by  statute  in  some  of  the  states.^" 

Nor,  on  the  other  hand,  will  a  legacy  by  a  creditor  to  his 

"Hassell     v.     Hawkins,     4     Brew.  '^  Charlton  v.   West,  30  Beav.   124; 

(Pa.)  468.  Strong   v.    Williams,    12    Mass.    402; 

'=  Smith  V.  Smith,  1  Allen  (Mass.)  Edelen  v.  Dent,  2  G.  &  J.  (Md.)  185. 

129;    Strong  v.   Williams,    12    Mass.  *"  Fort  v.  Gooding,  9  Barb.  (N.  Y.) 

402.  371 ;  Reynolds  v.  Robinson,  82  N.  Y. 

*"  Clark  V.  Bogardus,    2    Edw.    Ch.  103,    TH    Am.    Rep.    555;    Owens    v. 

(N.  Y.)  387;  Malony  v.  Scanlan,  53  Simpson,  5  Rich.  Eq.   (S.  Car.)  405; 

111.  122.  Cloud   V.   Clinkinbeard,    8    B.    Mon. 

*' Eaton  V.  Benton,  2  Hill   (N.  Y.)  (Ky.)  397,  48  Am.  Dec.  397. 

576;  Sholl  V.  Sholl,  5  Barb.   (N.  Y.)  =°  Hawkins   Wills,  299n;   Morris  v. 

312;    Smith  v.    Furnish,   70   Cal.   424,  Morris,  3  Houst.   (Del.)   568. 
12    Pac.   392;    Williams   v.    Crary,    5 
Cow.    (N.  Y.)   368. 


§    35 1  DISTRIBUTION LEGACIES DISCHARGE.  589 

debtor  operate  as  a  release  or  extinguishment  of  the  debt,  unless 
such  intention  clearly  appears  from  the  will.^^ 

Such  legacy  does  not  in  itself  operate  as  a  discharge  of  the 
debt.  It  merely  provides  the  legatee  with  means  to  pay  the  debt, 
while  the  debt  itself  remains  a  valid  and  existing  obligation  in 
favor  of  the  estate.^-  It  is  provided  by  statute  in  this  state  that 
the  discharge  of  any  demand  of  the  testator  against  any  person 
shall  be  construed  only  as  a  specific  bequest  of  such  demand,  and 
the  amount  thereof  shall  be  included  in  the  inventory  of  the 
effects  of  the  deceased,  and,  if  necessary,  be  applied  to  the  pay- 
ment of  his  debts,  and,  if  not  necessary  for  that  purpose,  shall  be 
paid  in  the  same  manner  as  other  specific  legacies. ^^ 

It  is  said  in  one  case  that  *'it  has  been  held  by  a  long  list  of 
well-considered  decisions  and  is  recognized  by  all  text  writers  on 
the  subject  of  wills  that  a  bequest  by  the  testator  to  his  creditor 
of  a  legacy  as  great  as,  or  greater  than,  the  debt,  without  any 
mention  of  the  debt  in  the  will,  is  regarded  as  a  satisfaction  of 
the  debt,  and  the  creditor  cannot  take  both  debt  and  legacy."^* 

And  where  a  testator  gives  a  legacy  in  his  will  for  the  express 
purpose  of  paying  a  debt,  and  then  afterwards  pays  the  debt  in 
his  lifetime,  such  legacy  is  satisfied  although  it  was  for  a  greater 
sum  than  the  debt,^°  but  if  the  language  of  the  will  be  inconsist- 
ent with  this  view  the  legacy  will  not  be  adeemed.^*' 

§  351.    When  legatee  a  minor — Executor  cannot  purchase. 

— In  case  any  legatee  be  a  minor,  his  legacy,  if  so  directed  by  the 
court,  and  no  other  provision  for  the  payment  thereof  be  made 
by  the  will,  may  be  paid  to  the  guardian  of  such  minor,  and  such 
court  may  require  an  additional  bond  of  such  guardian  if  the 
amount  of  such  legacy  was  not  taken  into  consideration  at  the 
time  he  gave  bond  as  such  guardian. ^^ 

''Roper      Leg.,      1064;      Williams'  '^Chaplin  v.  Leapley,  35  Ind.  App. 

Exrs.,  1303;  Story's  Eq.  Jur.,  §  1123;  511,  74  N.  E.  546. 

Eden  v.  Smyth,  5  Ves.  341.  ^=  Taylor  v.  Tolen,  38  N.  J.  Eq.  91. 

^  Bowen  v.  Evans,  70  Iowa  368,  30  =«  Keiper's  Appeal,  124  Pa.  St.  193, 

N.  W.  638.                                               •  16  Atl.  744. 

''Burns'  R.  S.  1908,  §  3130;  Becker  "Burns'  R.  S.  1908,  §  2905.    Minor 

V.  Becker,  96  Ind.  154.  legatees  cannot  appoint  an  agent  or 


590  INDIANA  PROBATE  LAW.  §  352 

Unless  so  directed  by  the  will,  a  payment  to  an  infant  legatee 
himself  is  no  protection  to  the  executor,  and  he  will  be  liable  to 
the  guardian. ^^ 

If,  however,  the  infant  has  no  guardian  the  legacy  may  be  paid 
into  court.  ^^ 

And  if  the  amount  of  such  legacy  is  not  in  excess  of  one  hun- 
dred dollars,  the  clerk  upon  order  of  the  court,  may  pay  the 
same  to  the  minor  directly  without  the  intervention  of  a  guar- 
dian or  next  friend,  and  the  receipt  of  such  minor  legatee  shall 
be  binding  upon  both  him  and  his  heirs.*^'' 

The  executor  stands  in  a  fiduciary  relation  to  the  legatees,  and 
the  purchase  by  him  of  a  legacy  will  be  void,  the  legatee,  not- 
withstanding such  purchase,  being  entitled  to  the  full  payment  of 
his  legacy,  with  interest  thereon  from  the  time  when  it  should 
have  been  paid,  if  the  assets  are  sufficient  to  pay  it  in  full.^^ 

§  352.  The  order  of  discharge. — The  estate  having  been 
fully  administered  and  final  settlement  made  after  such  notice  as 
the  statute  requires  to  all  who  may  be  interested  in  the  settle- 
ment of  the  estate,  and  the  executor  or  administrator,  having 
paid  all  the  debts,  and  legacies,  or  distributive  shares,  he  is  en- 
titled to  be  discharged  from  further  liability  on  account  of  such 
administration.  The  approval  by  the  probate  court  of  a  final 
settlement  is  an  adjudication  that  the  executor  or  administrator 
has  properly  accounted  for  all  the  assets  of  the  estate,  and  neces- 
sarily means  that  a  determination  has  been  had  of  all  matters 
properly  included  in  such  settlement.  Such  an  adjudication  is 
conclusive  and  is  impervious  to  all  except  a  direct  attack  in  an 
action  to  set  aside  the  final  settlement.^^ 

But  matters  which  were  not  within  the  scope  of  the  issues  pre- 

attorney  to  receive  their   distributive  ^^  Goodwin  v.  Goodwin,  48  Ind.  584. 

shares.     Tapley  v.  McGee,  6  Ind.  56.  "'  Carver   v.    Lewis,    105   Ind.   44,   2 

=*  Davis  V.  Crandall,  101  N.  Y.  311,  N.  E.  714;  State  v.  Burkam,  23  Ind. 

4  N.  E.  721;   Decrow  v.  Moody,  73  App.  271,  55  N.   E.    237;    Green    v. 

Me.  100.  Brown,    146   Ind.    1,   44    N.   E.   805; 

°°Kent  V.  Dunham,  106  Mass.  586;  Kuhn   v.    Boehne,   27   Ind.   App.   340, 

Thurston  v.  Sinclair,  79  Va.  101.  61  N.  E.  199. 

'"  Burns'  R.  S.  1908,  §§  2932-2933. 


§    353  DISTRIBUTION LEGACIES DISCHARGE.  591 

sented  in  a  final  settlement  are  not  concluded  by  the  judgment. 
It  is  not  conclusive  or  binding  upon  that  which  was  neither 
directly  before  the  court  nor  necessarily  involved  in  that  which 
was  before  the  court  and  adjudicated.®^ 

Unless  an  executor  or  administrator  is  discharged  in  accord- 
ance with  some  statutory  provision  neither  his  authority  nor 
liability  is  affected  by  the  approval  of  their  account  in  final  set- 
tlement except  in  so  far  as  the  order  of  approval  may  protect 
him  under  the  doctrine  of  res  adjudicata.  So  until  a  decree  is 
entered  discharging  him  from  all  further  liability  in  connection 
with  the  estate,  the  trust,  in  contemplation  of  law,  continues,  and 
the  executor  or  administrator  remains  clothed  with  the  duties 
and  authority  of  his  office,®*  it  being  said  that  a  final  settlement 
is  not  a  discharge  "unless  there  is  an  order  discharging  him."®^ 
The  statute  in  this  state  authorizes  the  discharge  of  an  executor 
or  administrator,  and  whenever  his  final  report  is  approved  he  is 
entitled  to  be  discharged  and  the  order  should  so  decree.®® 

Upon  satisfactory  proof  that  distribution  has  been  made  as 
ordered,  the  court  should  enter  a  formal  judgment  discharging 
the  executor  or  administrator  from  all  further  liability.®^ 

An  order  of  discharge  made  upon  filing  a  final  report  will  not 
be  regarded  as  a  final  settlement,  if  the  records  of  the  court  show 
property  yet  in  the  hands  of  the  administrator,  or  debts  remain- 
ing yet  unpaid. ®® 

§  353.    Disposition  of  real  estate  of  unknown  heirs. — If,  at 

the  final  settlement  of  an  estate,  there  remain  real  estate  of  the 
decedent  undisposed  of,  and  there  be  no  executor  authorized  by 
will  to  take  possession  thereof,  and  no  heirs  or  devisees  entitled 

•"Henderson  v.  Henderson,  21  Mo.  "^Burns'  R.  S.   1908,  §  2924;  Hart- 

379;   Dickinson  v.   Hayes,    31    Conn,  zell  v.  Hartzell,  Z7  Ind.  App.  481,  16 

417;  Flanders  v.  Lane,  54  N.  H.  390.  N.  E.  439. 

■^Rogers  v.  Johnson,  125  Mo.  202,  «' Jacobs    v.    Pou,    18    Ga.   346;    Re 

28  S.  W.  635;  Dohs  v.  Dohs,  60  Cal.  Hood,  98  N.  Y.  ZdZ;  Camper  v.  Ha- 

255.  yeth,  10  Ind.  528;  Sanders  v.  Loy,  61 

''Ligon  V.  Ligon,  84  Ala.  555,  4  So.  Ind.  298;   Carver  v.   Lewis,   104  Ind. 

405 ;   Fletcher   v.   Nicholson,   45   Ind.  438,  2  N.  E.  705. 

App.  375.  90  N.  E.  910.  °*  Crossan  v.  McCrary,  Zl  Iowa  684. 


592  INDIANA  PROBATE  LAW.  §  353 

thereto  shall  appear  and  take  possession  of  the  same,  the  circuit 
court  in  which  such  final  settlement  was  made  shall  direct  the 
administrator  who  settled  said  estate  to  lease  such  real  estate,  if 
it  be  susceptible  of  producing  rent,  for  one  year,  taking  bond 
from  the  lessee,  with  sufficient  surety,  for  the  payment  of  rent 
and  taxes  on  the  real  estate  and  the  keeping  of  the  same  in  good 
order.  Such  administrator  shall  render  to  the  court,  whenever 
required,  a  verified  account  of  such  renting,  and  pay  into  court 
any  moneys  arising  therefrom,  after  deducting  costs  and  ex- 
penses allowed  by  the  court.'''* 

Such  court  may,  from  time  to  time,  order  the  re-leasing  of 
such  real  estate,  in  case  the  heirs  or  devisees  thereof  do  not  ap- 
pear and  establish  their  title,  until  the  expiration  of  five  years 
after  such  final  settlement,  when,  if  no  heirs  appear,  the  court 
shall  order  such  administrator  to  sell  such  real  estate  under  the 
same  regulations  as  are  provided  in  case  of  sales  of  real  estate 
where  the  personal  estate  is  insufficient  to  pay  debts,  and  upon 
the  purchase-money  therefor  being  paid  into  court,  the  clerk 
shall  pay  the  same  to  the  treasurer  of  the  county,  who  shall  pay 
it  to  the  treasurer  of  state,  on  whose  books  it  shall  be  credited  to 
the  unknown  heirs  of  the  deceased.'^" 

Any  administrator  failing  to  pay  into  court  any  moneys  re- 
ceived on  account  of  the  rent  or  sale  of  real  estate  of  unknown 
heirs  or  devisees  when  required  to  do  so  by  the  provisions  of  this 
act,  or  by  the  court,  shall  be  liable  on  his  bond  therefor ;  and  in 
the  absence  of  such  owners,  suit  on  the  bond  shall  be  prosecuted 
by  the  prosecuting  attorney,  who  shall  be  allowed  compensation 
for  his  services  out  of  the  damages  recovered.'^ 

The  theory  of  the  above  statute  is,  that  such  real  estate  of  a 
decedent,  whose  heirs  or  devisees  are  unknown  or  absent,  and 
fail  to  take  possession  of  or  claim  the  same,  which  might  not  be 
needed  for  the  payment  of  his  debts,  should  be  kept  intact  as  real 
estate,  until  the  expiration  of  five  years  after  the  final  settlement 
of  such  decedent's  estate,  and  should  then  be  sold,  under  the 

'"  Burns'  R.  S.  1908,  §  2935.  '^  Burns'  R.  S.  1908,  §  2942. 

^"Burns'  R.  S.  1908,  §  2936. 


§    354  DISTRIBUTION LEGACIES DISCHARGE.  593 

order  of  the  proper  court,  as  real  estate  is  sold  for  the  payment 
of  a  decedent's  debts,  and  the  proceeds  of  such  sale  ultimately 
paid  into  the  state  treasury/^ 

§  354.    Same — Notice,  appearance,  disposition  of  money, 

etc. The  court  may  direct  notice  to  such  unknown  heirs  of 

the  pendency  of  such  proceedings,  to  be  given  at  any  time  before 
such  five  years  have  elapsed,  in  any  newspaper  printed  and  pub- 
lished in  the  United  States." 

If  at  any  time  after  such  final  settlement,  and  before  the  sale 
of  said  real  estate,  the  heirs  or  devisees  appear  in  such  court  and 
prove  their  title  to  said  real  estate,  the  court  shall  suspend  further 
proceedings  touching  the  lease  or  sale  thereof;  and  if  such  real 
estate  be  then  leased,  the  court  shall  order  the  administrator  hold- 
ing such  lease  to  pay  over  the  rents,  and  assign  the  same,  and  the 
bond  for  the  payment  of  the  rent,  to  such  heirs  or  devisees,  and 
discharge  him  from  further  duties  in  the  premises,  and  shall  tax 
the  costs  and  expenses  incurred  in  the  execution  of  such  trust 
to  such  heirs  or  devisees. ''*    . 

If,  at  the  expiration  of  two  years  from  the  final  settlement  of 
an  estate,  no  proof  of  heirship  or  title  by  will  shall  have  been 
made  as  to  all  or  any  portion  of  the  surplus,  the  court  shall  direct 
the  same  to  be  paid  to  the  county  treasurer,  to  be  paid  by  him 
to  the  treasurer  of  state,  who  shall  enter  the  same  on  his  books  to 
the  credit  of  the  unknown  heirs  of  the  decedent." 

An  administrator  who  fails  or  refuses  to  comply  with  such 
order  is  liable  to  removal.'^^ 

The  clerk  of  the  circuit  court  shall  report  to  the  auditor  of 
state,  within  thirty  days  after  the  same  is  paid  into  the  court,  the 
amount  of  money  belonging  to  unknown  heirs  which  has  been 
directed  to  be  paid  to  the  county  treasurer,  with  the  names  of  the 
decedent  and  the  executor  or  administrator;  and  such  auditor 
shall  enter  the  same  on  his  account  against  the  treasurer  of  state, 
who  shall  order  suit  to  be  brought  against  all  officers  on  their 
bonds  who  are  delinquent  in  the  management  of  the  same." 
"  State  V.  Meyer,  63  Ind.  33.  ''  Burns'  R.  S.  1908,  §  2939. 

"Burns'  R.  S.  1908,  §  2941.  ™Fuhrer  v.  State,  55  Ind.   150. 

"  Burns'  R.  S.  1908,  §  2937.  "  Burns'  R.  S.  1908,  §  2940. 

38— Pro.  Law. 


594  INDIANA  PROBATE  LAW.  §  355 

If,  at  any  time  after  the  receipt  of  the  proceeds  of  such  estate 
by  the  treasurer  of  state,  the  heirs  or  devisees  of  such  decedent 
appear  before  the  court  in  which  the  estate  was  settled  and  prove 
their  heirship,  such  treasurer  of  state,  on  a  certified  copy  of  the 
record  of  such  proceeding,  signed  by  the  clerk  of  such  court  and 
attested  by  his  official  seal,  shall  pay  to  such  heirs  the  amount  of 
their  share  of  such  estate  in  the  state  treasuiy.'^^ 

§355.  Same — A  species  of  escheat. — The  foregoing  stat- 
ute providing  for  the  disposal  of  the  estates  of  unknown  and  ab- 
sentee heirs  is,  to  a  certain  extent,  a  species  of  escheat.  If  such 
estates  are  not  claimed  it  would  seem  that  they  would  lapse  to 
the  state  as  unclaimed  estates.  What  shall  be  done  with  estates 
which  have  escheated  is  more  fully  explained  under  the  title  of 
escheats  in  chapter  XXXII. 

By  these  statutes,  if  the  heirs  of  a  decedent  are  unknown,  or 
fail  to  appear  and  make  proof  of  heirship  and  title  to  the  surplus 
of  an  estate,  such  surplus  must  be  paid  into  the  state  treasury; 
and  if  there  are  no  heirs  capable  of  inheriting,  such  estate  escheats 
to  the  state ;  but  where  proof  of  heirship  or  title  by  will  has  been 
made  or  shown  to  the  whole  or  any  part  of  the  surplus  of  an 
estate  yet  in  the  proper  court,  such  court  is  neither  required  nor 
authorized  to  direct  the  payment  of  such  surplus,  or  part  thereof, 
to  the  county  treasurer;  and  how  long  in  such  a  case,  after  proof 
made,  the  surplus  of  an  estate,  or  part  thereof,  ought  to  be 
allowed  to  remain  unclaimed  in  the  hands  of  the  clerk,  is  a  ques- 
tion not  yet  decided.'^ 

"Burns'  R.  S.  1908,  §  2938.  this    section   the   proper   officers   may 

""  State  V.  Meyer,  63  Ind.  33.     This  bring  suit  therefor.     Reid  v.  State,  74 

section  does  not  require  the  payment  Ind.  252 ;   State  v.  Witz,  87  Ind.   190. 

of    money    into    the    county    treasury  If  no  claim  is  made  within  two  years 

where  proof  of  heirship  is  made  and  from  the   settlement  of  an  estate   to 

the   money   is   not   called    for   within  the    surplus    for    the    distribution    to 

two     years     after     final     settlement,  heirs,  the  court  should  order  the  same 

State    V.    Taggart,    88    Ind.    269.      If  paid  into  the  county  treasury.   Fuhrer 

money    is    not   paid    into    the    county  v.   State,  55  Ind.   150. 
treasury  that  should  be  so  paid  under 


CHAPTER    XV. 

ESTATES    UNDER    FIVE    HUNDRED    DOLLARS. 

§  356.  Dispensing     with     administra-  §  361.  Issuing  of     certificate  —  Its 

tion.  effect. 

357.  Policy  of  the  statute.  362.  Lien  of  chattel  mortgage. 

358.  Petition,    inventory     and     ap-  363.  Lien  of  judgment,  etc. 

praisement.  364.  Suits  by  widow. 

359.  Notice,    hearing   and   decree. 

360.  Contest     by     creditors,     reap- 

praisement. 

§  356.  Dispensing  with  administration. — The  general  rule, 
as  has  been  shown,  is,  that  an  administration  upon  the  estate  of  a 
decedent  is  a  legal  necessity,  and  can  rarely  be  dispensed  with. 
There  is  one  instance  only  known  to  our  statutes,  where  an  ad- 
ministration of  the  estate  is  not  required,  and  that  is  in  the  case 
of  estates  which  do  not  exceed  five  hundred  dollars  in  value. 

In  such  case,  following  out  the  theory  of  the  law,  which  aims 
to  make  ample  provision  for  the  widow  out  of  the  estate  of  her 
deceased  husband,  the  statute  gives  to  the  widow  the  entire  estate. 
Where  it  is  believed  that  the  estate  of  any  deceased  husband  does 
not  exceed  in  value  the  sum  fixed  by  statute  as  the  widow's  abso- 
lute allowance,  the  estate  may  be  inventoried,  appraised,  and  set- 
tled without  an  administrator,  and  without  any  costs  or  expenses 
of  administration.  The  entire  estate,  in  such  case,  is  devolved  by 
law  upon  his  \vidow. 

One  eminent  writer  says  :  "The  soundness  of  the  principle  upon 
which  such  provisions  rest,  or  rather  the  absurdity  of  a  contrary 
view,  is  self  evident.  Why  should  the  law  compel  an  administra- 
tion where  there  is  nothing  to  administer?  The  appointment  of 
an  administrator  in  such  case  could  have  no  possible  effect  but 

595 


596  INDIANA  PROBATE  LAW.  §  357 

to  diminish  or  eat  up  what  the  law  intends  for  the  support  of 
widows  and  orphans."^ 

And  if,  at  any  time  after  administration  has  been  granted  upon 
any  estate,  any  executor  or  administrator  shall  discover  that  the 
whole  estate  of  the  decedent  is  not  worth  over  five  hundred  dol- 
lars, and  the  widow  of  the  deceased  be  living  and  entitled  to 
share  in  his  estate,  he  shall  so  report  to  the  court,  when,  after 
deducting  expenses  of  administration,  the  court  shall  enter  a 
decree,  vesting  the  whole  of  such  estate  in  the  widow,  and  for  the 
delivery  to  her  of  all  the  assets  of  the  estate  in  the  hands  of  such 
executor  or  administrator  and  the  revocation  of  his  letters.- 

§  357.  Policy  of  the  statute. — This  statute  carries  the  pol- 
icy of  the  law  in  this  state  to  its  logical  conclusion,  that  the  widow 
of  a  decedent  shall  receive  from  his  estate  a  certain  amount 
thereof  as  her  own,  absolutely  independent  of  debts,  claims,  dis- 
tribution or  testamentary  provision  on  her  behalf.^  By  this  stat- 
ute, when  the  entire  estate  of  a  decedent,  both  real  and  personal, 
does  not  exceed  in  amount  the  statutory  allowance  now  provided 
for  the  widow,  viz. ;  five  hundred  dollars,  his  widow  becomes  en- 
titled to  the  whole  estate.  The  law  gives  it  to  her,  and  the  title 
thereto  is  vested  in  her/  But  such  title  does  not  vest  in  such 
widow  until  her  right  thereto  has  been  adjudicated  and  passed 
upon  by  the  proper  court,  and  an  order  of  such  court  has  been 
made  decreeing  all  the  title  and  interest  of  the  decedent  in  such 
estate  to  be  vested  in  his  widow.^ 

'  Woerner  Am.  Law  Admin.,  §  202.         *  Haugh  v.   Seabold,   15   Ind.  343. 

=  Burns'   R.    S.    1908,   §   2945.     The        '^  Noblett  v.  Dillinger,  23  Ind.  505; 

right  of  the  widow  to  the  five  hun-  Quackenbush  v.  Taylor,  86  Ind.  270. 

dred   dollars   allowed  her   is  not  de-  Where  the  widow  of  a  decedent  peti- 

feated  by  a  levy  made  by  the  sheriff  tioned  to   have    all    of   her    deceased 

on  the  property  of  her  deceased  hus-  husband's  estate  set  off  to  her  from 

band   in   his   lifetime.     Dixon  v.   Al-  the   demands   of   creditors,   upon   the 

drich,  127  Ind.  296,  26  N.  E.  843.  ground  that  it  did  not  exceed  in  value 

'  Burns'  R.   S.   1908,  §  2786.     Dun-  the  sum  of  three  hundred  dollars,  and 

ham  V.  Tappan,  31  Ind.  173;  Nelson  such   proceedings  were   taken   as   re- 

V.  Wilson,  61  Ind.  255;  Whiteman  v.  suited  in  an  order  purporting  to  vest 

Swem,  71  Ind.  530;   Smith  v.   Smith,  in  her  all  of  said  property;  and  the 

76  Ind.  236.  heirs   of   said   decedent,   subsequently 


§    3SS  ESTATES    UNDER    FIVE   HUNDRED   DOLLARS.  597 

The  right  of  dower  and  the  rights  of  the  widow  under  our 
statutes  involve  essentially  the  same  principle,  both  growing  out 
of  the  marriage  relation.  The  statutes  are  rather  in  the  nature  of 
an  enlargement  than  an  abolishment  of  dower.  The  purpose  of 
the  legislature  has  been  to  secure  at  least  five  hundred  dollars  to 
the  widow  in  all  cases  where  the  husband  has  not,  in  his  lifetime, 
by  his  voluntary  contract  divested  himself  of  ownership,  or  so 
encumbered  the  title  to  his  property  as  to  destroy  the  right  of 
exemption.® 

§  358.  Petition,  inventory  and  appraisement. — If  the  widow 
of  a  decedent,  or  any  one  in  her  behalf,  shall  file  a  petition  in  the 
proper  clerk's  office  that  the  estate  of  such  decedent,  real  and  per- 
sonal, is  not  worth  over  five  hundred  dollars,  such  clerk  shall 
select  one  disinterested  householder  of  the  county,  and  such 
widow,  on  her  part,  another,  as  appraisers,  who  shall  proceed  to 
inventor}^  and  appraise  each  solvent  demand  due  the  deceased,  and 
each  article  of  personal  estate,  other  than  those  exempt  by  law 
from  administration,  and  each  tract  of  real  estate,  which  inven- 
tory and  appraisement  they  shall  return  to  such  clerk's  office, 
when  such  clerk  shall  cause  them  to  take  and  subscribe  an  oath 
that  such  appraisement  is  a  true  valuation  of  the  personal  and 
real  estate  of  the  decedent  exhibited  to  them.  And  the  widow 
shall  take  and  subscribe  an  oath,  to  be  filed  with  such  inventory, 
that  it  contains,  to  the  best  of  her  knowledge  and  belief,  a  true 
and  complete  statement  of  the  personal  and  real  estate  owned  by 
the  decedent  at  his  death,  other  than  the  articles  by  law  exempt 
from  administration.^ 

thereto,  instituted  proceedings  to  par-  Spencer  v.  McGonagle,  107  Ind.  410, 

tition  such  property,    claiming    two-  8  N.  E.  266. 

thirds  thereof  as  having  descended  to  *  Lloyd  v.  Arney,  43  Ind.  App.  450, 

them   from   their   father,   such   parti-  KJ  N.  E.  989;  Dixon  v.  Aldrich,  127 

tion  proceedings  being  a  collateral  at-  Ind.  296,  26  N.  E.  843. 

tack  on  the  proceedings  and  order  of  ^  Burns'    R.    S.    1908,    §    2943.      A 

the   probate   court   setting  aside   said  widow  to  whom  her  husband's  whole 

property  to  the  widow,  must  fail,  un-  estate,  consisting  in  part  of  lands,  is 

less  the  order  of  the  probate  court  is  awarded,  under  the  statute,  takes  the 

an  absolute  nullity.     Threlkeld  v.  Al-  lands    free    from    the    lien    of    judg- 

len,  133  Ind.  429,  32  N.  E.  576.     See  ments  rendered  against  her  husband 


598  INDIANA    PROBATE   LAW.  §    359 

This  statute  is  not  in  the  nature  of  a  statute  of  exemption,  and 
the  amount  is  not  taken  by  the  widow  free  from  all  demands  of 
creditors.^  An  inventory  and  appraisement  made  under  this 
statute  is  not  conclusive  as  to  the  value  of  the  property ;  nor  does 
it  dispense  with  the  necessity  of  making  an  inventory  and  ap- 
praisement by  an  administrator  subsequently  appointed.'"^ 

§  359.  Notice,  hearing,  and  decree.— The  statute  provides 
that  upon  the  return  of  such  inventory,  if  the  value  of  such  estate 
does  not  exceed  five  hundred  dollars,  the  clerk  shall  not  issue  let- 
ters, but  shall  continue  further  proceedings  in  the  premises  until 
the  next  term  of  the  court  thereafter;  when  the  court,  if  no  op- 
position be  made  thereto,  as  provided  in  the  next  section,  shall 
enter  a  decree  vesting  in  the  widow  all  the  title  and  interest  of  the 
decedent  in  such  estate  at  his  death,  and  directing  that  no  letters 
issue  thereon :  Provided,  That  should  the  next  succeeding  term  of 
the  circuit  court  not  commence  within  fifty-one  days  from  the 
date  of  the  filing  of  such  inventory,  such  widow  may  cause  a 
brief  notice  of  her  claim  and  the  filing  of  such  inventory  to  be 
published  for  three  successive  weeks  in  some  newspaper  published 
in  such  county  and  of  general  circulation  in  the  township  where 
deceased  resided  at  the  time  of  his  death ;  or  she  may  give  such 
notice  by  pwDsting  one  copy  of  such  notice  at  the  door  of  the 
court  house  where  such  claim  is  pending,  and  one  at  each  of  three 
public  places  in  the  township  where  deceased  resided  at  the  time 
of  his  death,  which  notice  shall  be  published  or  posted  in  the  week 
following  the  filing  of  such  inventory,  and  shall  give  the  date,  not . 
less  than  fifty-one  nor  more  than  sixty  days  from  the  filing  of 
such  inventory  on  which  the  decree  vesting  such  property  in  the 
widow  will  be  entered/" 

Upon  such  decree  being  entered  her  title  to  such  estate,  both 
real  and  personal,  becomes  absolute.  And  so  long  as  such  de- 
cree remains  in  force  and  is  not  set  aside  such  estate  is  wholly 

in  his  lifetime.     Quackenbush  v.  Tay-        '  Fleming  v.    Henderson,    123    Ind. 
lor,  86  Ind.  270.     See  Dixon  v.  Al-     234,  24  N.  E.  236. 
drich,  127  Ind.  296,  26  N.  E.  843.  "  Pace  v.  Oppenheim,  12  Ind.  533. 

^"Burns'  R.  S.  1908,  §  2944. 


§    360  ESTATES    UNDER    FIVE    HUNDRED   DOLLARS.  599 

hers,  although  it  is  afterward  discovered  to  be  of  greater  value 
than  five  hundred  dollars."  Where  the  creditor  of  an  estate 
brings  an  action  against  one,  alleging  that  he  had  wrongfully 
intermeddled  with  the  property  of  such  estate,  an  answer  that  the 
entire  property  of  the  estate  did  not  exceed  in  value  five  hundred 
dollars,  and  the  widow  of  the  decedent,  in  anticipation  of  an 
order  of  the  court  setting  off  the  property  to  and  vesting  the  title 
in  her,  had  for  value  transferred  such  property  to  the  defendant 
charged  with  intermeddling,  is  a  good  and  sufficient  answer.  The 
creditor  was  not  injured  by  such  transfer  because  he  had  no  right 
to  have  such  property  go  into  the  hands  of  an  administrator. 
Such  transfer,  at  most,  was  but  premature. ^^ 

A  mere  clerical  error  in  the  order  and  record  in  naming  the 
widow  will  not  invalidate  the  proceedings." 

Nor  can  errors  or  irregularities  in  such  proceedings  be  taken 
advantage  of  in  a  collateral  attack.^* 

The  real  estate  taken  by  the  widow  under  such  decree  vests  in 
her  by  an  absolute  fee  simple  title  with  full  power  in  her  to  sell 
and  convey  the  same  without  any  restriction,  and  free  from  any 
claim  of  the  children  of  the  first  husband. ^^ 

Nor  is  the  real  estate  taken  by  the  widow  under  this  statute 
subject  to  a  mechanic's  lien,  filed  after  the  husband's  death,  for 
materials  furnished  the  husband  and  used  in  erecting  a  building 
on  such  real  estate.^'' 

§  360.  Contest  by  creditors,  reappraisement. — It  is  also 
provided  that  any  creditor,  heir  or  legatee  of  such  decedent  may, 
at  such  succeeding  term  of  court  or  within  fifty  days  after  the 
filing  of  such  inventory,  file  in  the  proper  court  his  verified  peti- 
tion contesting  any  of  the  material  facts  set  forth  in  such  in- 
ventory and  appraisement,  thereby  showing  that  the  said  estate 
was  improperly  valued  and  that  estate  was  of  a  value  in  excess  of 

"Downs  V.  Downs,  17  Ind.  95;  "Spencer  v.  McGonagle,  107  Ind. 
Noblett  V.  Dillinger,  23  Ind.  505.  410,  8  N.  E.  266. 

^Kahn  v.  Tinder,  11  Ind.  147.  ^'Odell   v.   Reynolds,   156   Ind.  253, 

^^Threlkeld  v.  Allen,  133  Ind.  429,     59  N.  E.  846. 
32  N.  E.  576.  "■  ^^  Lloyd  v.  Arney,  43  Ind.  App.  450, 

87  N.  E.  989. 


600  INDIANA  PROBATE  LAW.  §  361 

five  hundred  dollars,  or  that  property  of  said  estate  was  not  in- 
cluded in  the  inventory,  which,  if  properly  valued,  would  make 
the  value  of  the  estate  in  excess  of  five  hundred  dollars;  in  such 
case  the  court  shall  appoint  two  other  disinterested  householders 
of  the  county,  who  shall  proceed  to  re-appraise  said  estate  under 
the  same  regulations  as  in  the  case  of  the  first  appraisement  and 
shall  make  report  thereof  within  ten  days  unless  for  good  reason 
longer  time  be  given;  and  if  said  appraisers  find  such  estate  not 
to  be  worth  over  five  hundred  dollars,  such  proceedings  shall  be 
dismissed  at  the  cost  of  the  petitioner/^ 

§  361.  Issuing  of  certificate — Its  effect. — Upon  the  court 
entering  the  decree  vesting  the  title  to  such  estate  in  the  widow, 
the  clerk  of  the  court  shall  make  and  deliver  to  her  a  certified 
copy  thereof,  which  shall  be  all  the  authority  necessary  to  enable 
her  to  sue  for  and  recover  all  debts  due  the  decedent,  and  the 
possession  of  any  property  belonging  to  such  estate,  such  suit 
being  prosecuted  in  her  own  name.  And  such  widow  shall  not 
be  liable  for  any  of  the  decedent's  debts,  except  mortgages  of  real 
estate,  but  she  shall  pay  and  may  be  sued  for  reasonable  funeral 
expenses  of  the  deceased  and  expenses  of  his  last  sickness.^^ 

The  wording  of  this  section  of  the  statute  seems  too  plain  for 
construction.  When  it  says  that  the  widow  shall  not  be  liable 
for  any  of  the  debts  of  the  decedent,  except  mortgages  of  real 
estate,  and  the  reasonable  funeral  expenses  and  expenses  of  last 
sickness,  its  meaning  appears  to  be  as  plain  as  words  can  make 
it ;  but  it  has  been  held  that  she  must  pay  all  debts  of  the  decedent 
which  have  become  specific  and  particular  liens  even  against  the 
personal  property  of  such  decedent,  in  his  lifetime,  such  as  chattel 
mortgages  of  specific  personal  property,  executions  on  judgments 

"  Burns'  R.  S.  1908,  §  2945.  ble  only  for  an  unliquidated  indebted- 
"  Burns'  R.  S.  1908,  §  2946.  When  ness  created  on  account  of  the  last 
the  estate  is  set  off  to  her  on  petition,  sickness  of  the  husband,  and  is  not 
a  suit  is  not  maintainable  against  the  liable  to  suit  on  notes  executed  by- 
widow  on  a  judgment  rendered  her  husband  or  the  judgments  ren- 
against  the  husband  upon  a  note  exe-  dered  against  him.  Weir  v.  Sanders, 
cuted  by  him  before  his  death  for  124  Ind.  391,  24  N.  E.  980. 
medical  services.     The  widow  is  Ha- 


§    362  ESTATES    UNDER    FIVE    HUNDRED   DOLLARS.  60I 

against  the  decedent  issued  and  levied  in  his  Hfetime,  etc.  And 
whenever,  under  these  statutes,  the  widow  procures  the  whole 
estate  to  be  delivered  to  her,  she  becomes  liable  for  reasonable 
funeral  expenses  and  for  the  expenses  of  the  last  sickness. ^^ 

Where  a  person  dies  under  such  circumstances  as  to  require  a 
coroner's  inquest,  and  such  decedent  leaves  an  estate  of  less  value 
than  five  hundred  dollars,  his  widow's  claim  to  the  estate,  under 
these  statutes,  is  superior  to  that  of  the  county  for  the  payment 
of  the  expenses  of  such  inquest. ^^ 

In  estates  of  five  hundred  dollars  and  under,  taken  by  the 
widow,  no  costs  or  fees  shall  be  taxed  or  collected.^^ 

§  362.  Lien  of  chattel  mortgage. — In  the  case  of  Recker  v. 
Kilgore,  62  Ind.  10,  it  was  decided  that  the  personal  property  of 
a  deceased  husband,  encumbered  by  a  chattel  mortgage,  executed 
by  the  decedent  in  his  lifetime,  to  secure  the  payment  of  a  debt, 
on  default  in  such  payment,  might  be  replevied  by  the  mortgagee 
from  the  decedent's  widow,  even  where  such  property,  by  reason 
of  the  fact  that  it  constituted  all  of  such  decedent's  estate,  and 
was  of  a  less  value  than  five  hundred  dollars,  had  been  duly 
appraised  and  set  off  to  such  widow  by  order  of  the  proper 
court.  In  that  case  the  court  says:  "At  the  time  the  deceased 
executed  the  chattel  mortgage  mentioned  in  the  answer,  he  had  the 
power  and  the  right  to  thus  encumber  the  property  mentioned  in 
it.  His  death  did  not  free  the  property  from  the  lien.  The  prop- 
erty was  properly  given  to  his  widow,  but  she  took  it  subject  to 
the  incumbrance.  The  widow  may  redeem  the  property  by  paying 
the  incumbrance ;  or,  might  probably  procure  it  to  be  sold  to  pay 
the  mortgage,  she  receiving  the  proceeds  of  the  sale  over  and 
above  paying  the  mortgage  debt.  The  widow  was  not  bound  to 
pay  the  husband's  debts,  but  she  was  bound  to  remove  legal  and 
valid  liens  he  had  placed  upon  his  property  or  suffer  said  property 
to  be  taken  for  the  payment  thereof. "^^ 

'  "Green    v.    Weever,  78  Ind.  494;  ="  Dubois  County  v.  Wertz,  112  Ind. 

Fleming  v.  Henderson,  123  Ind.  234,  268,  13  N.  E.  874. 

24  N.  E.  236;  Weir  v.   Sanders,  124  ="  Burns'  R.  S.  1908,  §  7324. 

Ind.  391,  24  N.  E.  980.  ===  Mead  v.  McFadden,  68  Ind.  340; 


602  INDIANA    PROBATE   LAW.  §    363 

Neither  the  constitution  nor  the  statute,  was  meant  to  restrain 
the  debtor  from  voluntarily  incumbering  or  transferring  his  prop- 
erty." 

§  363.  Lien  of  judgment,  etc. — In  the  case  of  Quacken- 
bush  V.  Taylor,  86  Ind.  270,  construing  the  statute,  the  court  says : 
"This  section  is  the  conclusion  of  the  provisions  for  giving  all 
the  estate,  both  real  and  i)ersonal,  where  it  does  not  exceed  in 
value  the  sum  of  five  hundred  dollars,  and  appears  to  give  to  the 
widow  an  absolute  title  to  all  of  such  property  except  as  against 
specific  liens,  and  mortgages  on  real  estate  are  mentioned  as 
exceptions.  It  gives  her  the  right  to  sue  for  and  recover  the  pos- 
session thereof  in  her  own  name."  And  further,  "The  property 
had  been  decreed  to  the  widow,  and  no  specific  lien  existed  upon 
it  by  the  levying  of  an  execution  or  otherwise.  The  only  lien 
upon  it  was  the  general  lien  of  the  judgment.  A  judgment  is  not 
a  lien  upon  personalty,  and  is  only  made  a  lien  upon  realty  by 
statute.  A  judgment  creditor  has  no  right  in  the  property  of  his 
judgment  debtor;  he  has  only  the  right  to  make  his  judgment 
eft'ectual.  But  when  a  levy  of  the  execution  is  made,  a  specific 
lien  attaches."  And  therefore,  where  no  execution  has  been 
levied  prior  to  the  time  the  property  is  set  off  to  the  widow  as 
being  of  less  value  than  five  hundred  dollars,  and  a  decree  vesting 
the  title  in  her  has  been  entered  by  the  proper  court,  she  takes  all 
of  such  property,  real  and  personal,  freed  from  judgments  ren- 
dered against  her  deceased  husband  in  his  lifetime.-* 

While  the  widow  takes  and  holds  the  real  estate,  if  any,  which 
may  be  turned  over  to  her  subject  to  the  specific  lien  of  a  mort- 
gage, she  takes  it  exempt  from  the  liens  or  charges  of  judgments 
rendered  against  the  decedent  in  his  lifetime.^^ 

Love  V.  Blair,  72  Ind.  281;  Quacken-     ner  v.  Warner,  30  Ind.  App.  578,  (£ 
bush  V.  Taylor,  86  Ind.  270;  Broad-     N.  E.  760. 

head  v.  McKay,  46  Ind.  595 ;  Weir  v.        '*  Dixon  v.   Aldrich,    127   Ind.   296, 
Sanders,  124  Ind.  391,  24  N.  E.  980.     26  N.  E.  843. 
^  Love  V.  Blair,  72  Ind.  281 ;  War-        "'  Snyder  v.  Thieme  etc.  Brew.  Co. 

173  Ind.  659,  90  N.  E.  314. 


§    364  ESTATES   UNDER   FIVE   HUNDRED   DOLLARS.  603 

§  364.  Suits  by  widow. — Where,  by  the  order  of  the  proper 
court,  the  estate  of  a  decedent  is  transferred  to  and  vested  in  his 
widow,  as  being  of  less  value  than  five  hundred  dollars,  so  long 
as  such  order  remains  in  force,  she  may  sue  for  and  recover  all 
claims  and  property  of  the  estate,  and  it  is  not  material  that  the 
property  or  claims  so  ordered  to  be  delivered  to  the  widow  may, 
in  point  of  fact,  exceed  the  appraised  value,  or  the  statutory  limit 
of  five  hundred  dollars.  She  is  entitled  to  recover  whatever  there 
may  be  of  property  or  debts  belonging  to  such  estate  by  virtue  of 
the  order  of  the  court,  and  such  right  cannot  be  taken  from  her 
except  by  setting  aside  such  order.-" 

Where  the  estate  of  a  decedent  is  less  than  the  statutory  limit 
of  five  hundred  dollars,  the  law  gives  it  to  the  widow,  and  no 
claim  against  the  decedent  acquired  after  his  estate  has  been 
vested  in  his  widow  can  be  set  off  in  a  suit  by  her  to  recover  such 
vested  estate."^ 

="  Downs   V.   Downs,     17    Ind.    95;        =' Haugh  v.  Seabold,  15  Ind.  343. 
Warner  v.  Warner,  30  Ind.  App.  578, 
(56  N.  E.  760. 


CHAPTER  XVI. 

SETTLEMENT  OF  INSOLVENT  ESTATES. 

§  365.  As  to  insolvent  estates.  §  Z72.  Filing  petition,  etc. 

366.  The  petition  and  its  contents.  374.  As  to  liens  on  real  estate. 

367.  Order  and  notice.  375.  Claim,   filed   after   partial   dis- 

368.  Effect  of  order  on  claims  dur-  tribution. 

ing  year.  376.  Final     settlement — Uncollected 

369.  Partial   settlement.  assets. 

370.  Payment   of   liens.  2)77.  Same — Claim  pending. 

371.  As  to  set-off  against  liens.  378.  Same — Claim  of  surety. 

372.  Sale    of    real    estate — Petition  379.  Notice  of  final  settlement. 

pending. 

§  365.  As  to  insolvent  estates. — Our  statutes  provide  for 
the  settlement  of  a  decedent's  estate  as  insolvent  whenever  it 
becomes  apparent  to  the  executor  or  administrator  that  the  assets 
of  the  estate  liable  for  the  payment  of  debts  and  liabilities  are 
insufficient  for  that  purpose.  But  m  view  of  the  fact  that  our 
statutes  also  establish  the  order  of  priority  in  which  debts  and  lia- 
bilities shall  be  paid  whether  the  estate  is  solvent  or  not,  the  neces- 
sity for  this  special  statute  is  hardly  apparent. 

It  is  the  established  policy  of  our  law  that  claims  of  the  same 
class  shall  stand  upon  an  equality,  and  that  claims  in  a  lower 
class  shall  not  be  paid  until  all  those  in  the  class  above  it  have  been 
discharged,  and  that  specific  liens  against  any  portion  of  the  prop- 
erty of  a  decedent  continue  until  discharged  by  decree  or  pay- 
ment; the  filing  of  a  secured  claim  not  releasing  the  lien  of  the 
claimant.^ 

^Tarplee  v.  Capp,  25  Ind.  App.  56,    v.  Baker,  140  Ind.  213,  39  N.  E.  868; 
56  N.  E.  270;  Ryker  v.  Vawter,  117     Hall  v.  Price,  141  Ind.  576,  40  N.  E. 
Ind.  425,  20  N.  E.  294;  Beach  v.  Bell,     1084. 
139  Ind.  167,  38  N.  E.  819;  Whetstone 

604 


§    366  SETTLEMENT   OF   INSOLVENT   ESTATES.  605 

It  is  also  held  that  if  an  executor  or  administrator,  through 
a  mistaken  belief  that  an  estate  is  solvent,  pays  a  claim  out  of  its 
order,  he  may  recover  a  ratable  portion  from  the  claimant.^ 

Mr,  Woerner  says,  "It  would  seem  that  the  division  of  debts 
into  classes,  giving  one  class  priority  over  another,  is  peculiarly 
applicable  to  insolvent  estates,  for  if  there  be  sufficient  assets  to 
pay  all  the  debts  their  gradation  serves  no  important  purpose. 
It  is  this  gradation  of  debts,  and  distinguishing  between  those 
created  by  the  decedent  and  those  growing  out  of  the  administra- 
tion, which  produces  substantially  the  same  result  in  states  recog- 
nizing no  distinction  between  the  administration  of  solvent  and 
of  insolvent  estates.  The  functions  of  the  executor  or  admin- 
istrator seem  to  be  fully  adequate  in  either  case,  since  they  possess 
all  the  powers  of  assignees,  or  receivers  of  insolvent  debtors ;  and 
the  powers  of  probate  courts  are  peculiarly  adapted  to  secure  the 
rights  of  creditors  with  full  protection  to  executors  and  admin- 
istrators and  the  next  of  kin  and  legatees."^ 

§  366.  The  petition  and  its  contents. — The  declaration  of 
insolvency  is  made  by  the  court  having  jurisdiction  of  the  settle- 
ment of  the  estate  upon  the  petition  of  the  executor  or  adminis- 
trator ;  and  after  such  declaration  or  order  of  court  is  made  the 
estate,  as  to  its  settlement,  must  be  treated  as  an  insolvent  estate 
even  though  it  be  afterwards  found  to  be  solvent.* 

The  statute  provides  that  as  soon  as  any  executor  or  admin- 
istrator shall  discover  that  the  personal  estate  of  the  decedent 
and  the  real  estate  liable  to  be  made,  or  which  shall  have  been 
made,  assets  for  the  payment  of  his  debts,  are  insufficient  to  pay 
the  debts  and  liabilities  of  the  estate,  he  shall  immediately  file  his 
petition  in  the  circuit  court  issuing  his  letters,  to  settle  the  estate 
as  insolvent.^   Such  petition  shall  specify: 

^East  V.   Ferguson,    59    Ind.     169;  MVoerner  Am.  Law  Admin.,  §  404. 

Wright  V.  Jordan,  71  Ind.   1 ;   Smith  '  Walker  v.  Newton,  85  Me.  458,  27 

V.    Smith,    76   Ind.     236;     Stokes    v.  Atl.  347. 

Goodykoontz,  126  Ind.  535,  26  N.  E.  '  Burns'  R.   S.   1908,  §  2947. 
391 ;   Tarplee  v.   Capp,  25   Ind.   App. 
56,  56  N.  E.  270. 


6o6  INDIANA    PROBATE    LAW.  §    367 

First.  The  amount  of  unsecured  claims  filed  and  allowed 
against  the  estate. 

Second.  The  amount  of  unsecured  claims  filed  and  pending  for 
allowance  against  the  estate. 

Third.  The  amount  of  personal  estate  which  shall  have  come 
into  the  hands  of  the  executor  or  administrator,  and  the  value 
thereof. 

Fourth.  The  real  estate,  if  any,  and  the  estate  or  interest,  legal 
or  equitable,  liable  to  be  made  assets,  and  the  value  thereof.; 
or  if  the  same  or  any  part  shall  have  been  sold,  the  amount 
realized  therefrom,  and  the  value  of  any  portion  remaining  un- 
sold. 

Fifth.  The  particulars  of  each  lien  thereon  remaining  unsatis- 
fied of  record  and  amount  of  indebtedness  of  the  deceased  secured 
thereby,  and  remaining  unpaid,  if  adjudged  by  the  court,  and, 
if  not,  the  apparent  amount  due  thereon. 

Sixth.  The  probable  deficiency  of  the  estate  to  pay  the  debts 
and  expenses  of  administration.  And  such  j^etition  shall  be  veri- 
fied by  the  oath  of  the  executor  or  administrator.** 

§  367.  Order  and  notice. — If,  upon  the  filing  of  said  peti- 
tion, it  shall  appear  to  the  court,  or  judge  thereof  in  vacation, 
that  the  estate  is  probably  insolvent,  an  order  shall  be  made  by 
the  court  or  judge  directing  the  estate  to  be  settled  as  insolvent, 
and  that  notice  of  such  insolvency  be  given  to  the  creditors  re- 
quiring them  to  file  their  claims  for  allowance.  Such  notice 
shall  be  given  by  publication  for  two  successive  weeks  in  some 
public  weekly  newspaper  published  in  the  county  in  which  the 
estate  is  pending  for  settlement,  and  by  posting  like  notices  in 
three  public  places  in  said  county  and  one  at  the  court  house 
door;  after  such  publication  and  notice,  the  executor  or  admin- 
istrator shall  show  to  the  court  that  such  publication  and  notice 
have  been  given  as  required  by  this  section.'^ 

§  368.  Effect  of  order  on  claims  during  year. — If  such  es- 
tate be   declared   insolvent   before   the   expiration   of   one   year 

•'Burns'  R.   S.  1908,  §  2948.  'Burns'  R.  S.   1908,  §  2949. 


§    369  SETTLEMENT    OF    INSOLVENT    ESTATES.  607 

from  the  first  issuing  of  letters  thereon  and  the  giving  of  notice 
thereof,  no  claim  against  it,  except  expenses  of  administration 
and  expenses  of  the  last  sickness  and  funeral  of  the  deceased, 
shall  be  paid  until  the  expiration  of  such  year."* 

After  an  executor  or  administrator  has  filed  his  petition  in 
the  proper  court  to  settle  his  decedent's  estate  as  insolvent,  an 
action  cannot  be  brought  against  him  on  a  claim  due  from  such 
decedent,  nor  may  a  judgment  against  such  executor  or  admin- 
istrator, as  such,  be  collected  if  recovered. ** 

But  if  an  executor  or  administrator,  without  exercising  due 
care,  pays  a  claim  in  full  when  the  estate  is  insolvent,  he  takes 
the  chance  of  losing  the  excess  over  the  amount  which  the 
claimant  would  have  received  in  the  dividend  among  creditors. 
An  agreement,  however,  made  by  the  claimant  in  such  case  with 
the  administrator  to  refund  to  him  such  excess  should  the  estate 
prove  insolvent,  is  based  upon  a  good  and  sufficient  considera- 
tion, and  will  be  held  valid  and  binding.^'' 

§  369.  Partial  settlement. — At  the  end  of  such  year,  the 
executor  or  administrator  of  the  estate  shall  file  in  the  court  a 
complete  account  of  all  the  assets  received  and  payments  made 
on  account  of  the  estate,  as  hereinbefore  required,  as  in  case 
of  a  solvent  estate,  the  amount  of  money  on  hands,  and  the 
claims  due  the  estate,  if  any,  remaining  uncollected;  and  the 
court  shall  proceed  to  hear  and  determine  the  same  as  in  case  of 
an  account  for  partial  settlement  in  a  solvent  estate.^^ 

If,  upon  the  hearing  of  such  account,  it  appear  to  the  court  that 
all  the  estate  liable  to  be  made  assets  shall  have  been  converted 

^Burns'  R.  S.  1908,  §  2955.  The  319,  22  X.  E.  315;  Wheeler  v.  Haw- 
executor  of  an  insolvent  estate  should  kins,  116  Ind.  515,  19  N.  E.  470;  Eg- 
not  apply  the  personal  assets  of  the  bert  v.  Rush,  7  Ind.  706.  Where  the 
estate  to  the  redemption  of  incum-  executor  paid  too  much  to  the  widow, 
bered  real  estate  simply  for  the  and  paid  certain  claims  in  full,  in 
widow's  benefit.  Whitehead  v.  Cum-  action  on  his  bond,  he  was  held  not 
mins,  2  Ind.  58.  accountable    for    "not   paying   money 

'Remy  v.  Butler,  7  Blackf.    (Ind.)  into     court,"     nor     for     "converting 

5 ;  Joyce  V.  Hufford,  7  Blackf.  (Ind.)  money    to    his    own    use."      State    v- 

382.  Lemonds,  29  Ind.  437. 

'"Beardsley  v.   Marsteller,   120  Ind.  "Burns'  R.  S.   1908,  §  2956. 


6o8  INDIANA    PROBATE    LAW.  §    370 

into  money,  and  there  be  no  claims  pending  against  it  unallowed, 
the  court  shall  order  the  money  applied  to  the  expenses  of  admin- 
istration, and  distributed  among  the  claimants  whose  claims  have 
been  allowed,  in  the  order  hereinbefore  provided  pro  rata,  among 
the  claimants  of  each  class,  subject  to  the  provisions  of  the  next 
section  of  the  statute.^- 

In  an  action  by  an  administrator  of  an  insolvent  estate  against 
a  person  on  a  claim  due  from  such  person  to  the  estate,  the  de- 
fendant cannot,  in  such  action,  set  ofif  a  claim  for  services  ren- 
dered the  decedent  in  his  lifetime,  but  may  set  off  the  value  of 
any  services  rendered  by  him  for  the  estate,  or  for  the  administra- 
tor.^« 

§  370.  Payment  of  liens. — "If  any  portion  of  the  moneys 
shall  have  been  derived  from  the  sale  of  real  estate,  and  the 
same  shall  have  been  sold  subject  to  liens,  the  parties  holding 
such  liens  shall  not  be  entitled  to  share  in  such  distribution.  If 
such  sale  shall  have  been  made  to  discharge  liens  on  tlie  real 
estate,  the  money  derived  from  such  sale  shall  be  first  applied 
to  the  payment  of  such  liens  in  the  order  of  their  respective  pri- 
orities, whether  legal  or  equitable;  and  if  any  portion  of  the  debts 
secured  by  such  liens  remain  unsatisfied  after  the  application  of 
the  purchase-money,  the  residue  shall  be  entitled  to  share  in 
such  distribution  as  general  debts. "^* 

Under  this  statute  a  specific  lien  upon  real  estate,  created  by 
the  decedent  in  his  lifetime,  where  such  real  estate  has  been 
sold  by  the  executor  or  administrator  freed  from  such  lien,  the 
lien  follows  and  attaches  to  the  fund  in  the  hand  of  the  execu- 
tor or  administrator,  arising  from  such  sale;  and  its  payment 
takes  precedence  of  costs  of  administration,  funeral  expenses, 
and  expenses  of  the  last  sickness.  In  this  case,  in  construing 
this  statute,  the  court  says:  "Upon  an  application  by  an  ad- 
ministrator to  sell  real  estate  for  the  payment  of  debts,  the 
court  must  make  one  of  two  orders  where  there  are  liens:  (i) 
To  sell  subject  to  the  liens;  or  (2)  to  sell  in  discharge  thereof. 

■  '=  Burns'  R.  S.   1908,  §  2957.  "Burns'  R.  S.  1908,  §  2958. 

"^  Ferris  v.  Mullan,  56  Ind.   164. 


§    37^  SETTLEMENT    OF    INSOLVENT    ESTATES.  609 

When  the  sale  is  made  subject  to  a  Hen,  the  lien  remains  intact, 
and  it  is  expressly  provided  by  the  statute  that  the  lienholder 
shall  not  share  in  the  distribution  of  the  fund.  When  the  sale 
is  made  to  discharge  a  lien,  it  is  expressly  provided  that  the 
moneys  arising  from  the  sale  shall  be  applied  to  the  payment  of 
the  lien."^^ 

The  fact  that  a  decedent's  estate  has  been  ordered  settled  as 
insolvent  makes  no  difference  as  to  liens  of  mortgages  upon  his 
real  estate;  they  must  be  paid  in  fuU.^" 

§  371.  As  to  set-off  against  liens. — In  the  case  of  Denny  v. 
Moore,  13  Ind.  418,  it  was  insisted  that  a  judgment  rendered  in 
favor  of  the  administrator  of  an  estate  upon  a  note  given  for 
property  purchased  at  the  administrator's  sale  of  the  decedent's 
personal  property,  and  which  estate  was  afterward  duly  declared 
insolvent  and  ordered  settled  as  such,  could  not,  in  such  a  case,  be 
legally  set  off  against  a  claim  upon  the  estate  in  favor  of  the 
maker  or  payor  of  such  note,  for  the  reason  that  an  unequal 
distribution  of  the  effects  of  such  estate  would  be  occasioned 
thereby.  The  court  say :  "The  administrator  was  not  bound  to 
set  off  the  judgment  against  the  plaintiff's  claim  upon  the  estate, 
but  having  done  so  he  could  not  afterward  complain  of  it.  The 
setting  off  of  the  judgment  satisfied  and  extinguished  it ;  and  if 
the  plaintiff  thereby  received  more  than  the  other  creditors,  it 
was  no  fault  of  his;  nor  is  the  judgment,  therefore,  any  the  less 
fully  satisfied  and  discharged.  Instead  of  setting  off  the  judg- 
ment, the  administrator  might,  undoubtedly,  have  collected  it,  and 
paid  the  plaintiff  only  his  pro  rata  share  of  his  entire  claim 
against  the  estates  but  having  thus  set  it  off,  he  has  precluded 
himself  from  exercising  such  right." 

§  372.  Sale  of  real  estate — Petition  pending, — If,  at  the 
time  of  obtaining  the  order  to  settle  as  insolvent-,  a  petition  shall 
be  pending  for  the  sale  of  the  real  estate  for  the  payment  of  debts, 
or  if  an  order  shall  have  been  obtained  for  such  sale,  the  executor 

"Ryker  v.  Vawter,  117  Ind.  425,  20        "Evans  v.  Pence,  78  Ind.  439. 
N.  E.  294. 

39— Pro.  Law. 


6lO  INDIANA    PROBATE    LAW.  i^    373 

or  administrator  shall  j^roceed  thereunder  to  sell  the  real  estate 
according  to  the  provisions  of  this  act."  The  terms  and  notice 
of  such  sale,  report  and  continnation  thereof,  and  conveyance 
shall  be  governed  by  the  provisions  of  this  act  for  the  sale  of  real 
estate  for  the  payment  of  debts. ^^ 

§  373.  Filing  petition,  etc. — If  there  be  real  estate  of  the 
decedent  liable  to  be  made  assets  for  the  payment  of  debts,  and 
no  petition  pending  for  the  sale  thereof  for  such  purpose,  the 
petition  required  shall  make  like  parties  defendant  thereto,  as  is 
required  in  the  petition  hereinbefore  provided  for  the  sale  of 
real  estate  to  pay  the  debts  of  the  deceased ;  and  like  notice  shall 
be  given  to  them  Of  the  pendency  of  the  petition,  as  is  required  in 
the  case  of  the  other  petition.^**  Upon  the  hearing  of  such  peti- 
tion like  proceedings  shall  be  had  as  in  case  of  petitions  for  the 
sale  of  real  estate  for  the  payment  of  debts  as  hereinbefore  pro- 

§  374.  As  to  liens  on  real  estate. — If  upon  such  hearing  it 
be  found  that  there  are  existing  liens  upon  the  real  estate  created 
or  suffered  by  the  decedent  in  his  lifetime,  the  court,  in  ordering 
the  sale  of  such  real  estate,  shall  direct  whether  the  same 
shall  be  sold  to  discharge  any  or  all  of  the  liens,  or  sold  sub- 
ject to  all  or  any  of  such  liens. -^  If  a  person  holding  a  Hen  or 
liens  upon  the  real  estate  of  the  deceased,  created  or  suffered 
by  him  in  his  lifetime,  shall  file  in  the  court,  in  the  proceedings  to 
sell  such  real  estate  before  the  order  for  the  sale  thereof  be  made, 
a  release  of  such  lien  or  liens,  he  shall,  upon  the  allowance  of  the 
debt  secured  by  such  lien,  be  entitled  to  share  in  the  distribution 
of  the  assets  as  a  oeneral  creditor.-- 


ts^ 


§  375.  Claim,  filed  after  partial  distribution. — If  a  partial 
distribution  of  an  insolvent  estate  be  made  at  the  end  of  the  first 
year  among  the  creditors  whose  claims  were  then  allowed,  and 
the  estate  continued  for  final  settlement,  and  unsecured  claims  be 

"  Burns'  R.  S.   1908.  §  2954.  ="  Burns'  R.  S.  1908,  §  2951. 

''^Burns'  R.  S.  1908,  §  2953.  -"^Burns'  R.  S.  1908,  §  2952. 

''  Burns'  R.  S.  1908,  §  2950.  "  Burns'  R.  S.  1908,  §  2959. 


§    37^  SETTLEMENT    OF    INSOLVENT    ESTATES.  6ll 

thereafter  filed  and  allowed,  such  claims  shall  be  entitled  to  par- 
ticipate only  in  the  assets  of  the  estate  remaining  after  such  par- 
tial distribution  shall  have  been  made."^ 

§  376.  Final  settlement — Uncollected  assets. — If,  at  the 
hearing  of  such  account,  it  appear  to  the  court  that  there  is  money 
in  the  hands  of  the  executor  or  administrator  belonging  to  the 
estate,  and  there  remain  solvent  assets  thereof  not  converted 
into  money,  and  no  claims  be  pending  against  the  estate  unal- 
lowed, the  court  shall  order  the  distribution  of  the  money  on 
hand  as  aforesaid,  and  continue  the  estate  for  collection,  unless 
the  assets  remaining  unconverted  consist  of  claims,  and  any  one 
or  more  creditors  will  accept  such  claims  on  account  of  the 
amount  due  them  respectively  in  such  distribution,  in  which 
case  the  court  shall  direct  the  assignment  of  such  claims  without 
recourse,  and  such  estate  shall  be  finally  settled,  and  the  executor 
or  administrator  discharged  from  his  trust."* 

§  377.  Same — Claim  pending. — If,  at  the  time  of  such  dis- 
tribution, a  claim  shall  be  pending  against  such  estate,  unallowed, 
and  such  estate  shall  have  been  converted  into  money,  such 
court  shall  order  distribution  as  aforesaid,  reserving  enough  of 
such  money  to  pay  the  pro  rata  share  Of  such  claim  in  the  event 
it  be  allowed,  and  shall  continue  final  settlement  of  the  estate 
until  the  ensuing  tenn,  and  from  time  to  time  until  such  claim  is 
finally  disposed  of,  unless  the  other  creditors  shall  execute  to  such 
claimant  a  bond,  with  approved  surety,  for  the  payment  of  his  pro 
rata  share,  if  such  claim  be  finally  allowed,  in  which  case  such 
estate  shall  be  finally  settled.-^ 

§  378.  Same — Claim  of  surety. — If  any  surety  of  a  dece- 
dent is  likely  to  become  liable,  on  account  of  his  principal,  for  the 
payment  of  money  in  damages  or  otherwise,  but  which  liability 
has  not  accrued  at  the  time  of  final  settlement  of  such  decedent's 
estate,  such  surety  shall  file  a  statement  of  such  liability  in  the 

^  Burns'  R.  S.  1908,  §  2962.  "-'  Burns'  R.  S.  1908,  §  2961. 

'-*  Burns'  R.  S.  1908,  §  2960. 


6l2  INDIANA    PROBATE   LAW.  §    379 

proper  court,  when  the  pro  rata  share  of  such  surety,  in  the 
event  his  claim  were  allowed,  shall  be  reserved  out  of  the  dis- 
tribution, and  the  final  settlement  of  such  estate  continued  until 
such  claim  be  disposed  of,  unless  the  other  creditors  shall  execute 
a  bond  to  him,  with  sufficient  penalty  and  surety,  to  be  approved 
by  him,  conditioned  that  they  will  pay  the  pro  rata  share  of  such 
claim  in  the  event  it  be  allowed;  in  which  case  such  estate  shall 
be  finally  settled." 

§  379.  Notice  of  final  settlement. — Upon  the  filing  of  an  ac- 
count for  final  settlement,  the  creditors  of  the  estate  shall  be 
notified  of  the  filing  and  time  of  hearing  of  the  final  settlement 
account  in  the  manner  hereinbefore  provided  in  case  of  solvent 
estates. ^^ 

"  Burns'  R.  S.  1908,  §  2963.  "  Burns'  R.  S.  1908.  §  2964. 


CHAPTER  XVII. 

LIABILITY   OF   HEIRS,   DEVISEES   AND   DISTRIBUTEES. 

§  380.  Common-law  liability.  §  385.  To  what  extent  heir,  etc.,  liable. 

381.  When  liable  and  to  whom.  386.  As  to  parties  to  the  action. 

382.  An  administration  necessary.  387.  Judgment  or  decree  and  its  en- 

383.  When    suit    must    be    brought,  forcement. 

and  how.  388.  When    judgment    may    be    an- 

384.  Damages   for  breach   of   cove-  nulled. 

nant. 

§  380.  Common-law  liability. — By  the  common  law  the 
title  to,  and  the  absolute  control  over  the  personal  property  of  a 
decedent  passed  to  his  executor  or  administrator  and  it  was  the 
duty  of  such  officer  to  pay  the  debts,  but  the  real  estate  of  a 
decedent  vested  in  his  heirs  free  from  all  debts  except  those  by 
specialty  created  by  the  ancestor.  Devisees  were  not  liable  for 
either  specialty  or  simple  debts.  Such  debts  as  the  heir  was  liable 
for  only  extended  to  the  value  of  the  land  descended  to  him,  and 
they  were  not  liens  upon  the  land,  nor  was  there  any  personal 
liability  imposed  upon  the  heir.  So  if  he  had  conveyed  the  land 
before  any  proceeding  was  brought  against  him  on  any  specialty 
obligation  of  the  ancestor  the  creditor  had  no  remedy.  Therefore 
in  the  absence  of  any  statute  heirs  are  not  liable  for  simple  con- 
tract debts  of  the  ancestor,  and  are  only  liable  for  his  specialty 
debts  to  the  value  of  the  lands  which  descend  to  them,  and  even 
this  liability  they  may  escape  by  conveying  such  lands  before 
action  brought  on  the  specialty  contract.^     The  heir  or  devisee, 

*  Wilson   V.    Knubley,   7   East    128 ;  E.  542 ;  Hall  v.  Martin,  46  N.  H.  2,2>7 ; 

Muldoon  V.  Moore,  55  N.  J.  L.  410,  Whittelsey  v.  Brohammer,  31  Mo.  98; 

26  Atl.  892,  21  L.  R.  A.  89n ;  Cleven-  People  v.  Brooks,  123  111.  246,  14  N. 

ger  V.  Matthews,  165  Ind.  689,  76  N.  E.  39;  Flasket  v.  Beeby,  4  East  485. 

613 


6l4  INDIANA    PROBATE    LAW.  §    38 1 

however,  took  the  land  subject  to  any  charge  or  incumbrance 
agamst  it." 

From  this  it  will  be  seen  that  the  liability  of  heirs  and  devisees 
is  almost  wholly  of  statutory  origin,  and  it  is  perhaps  proper  to 
observe  that  the  statutory  changes  made  in  this  branch  of  the  law 
in  England,  as  well  as  in  practically  all  of  the  states  of  the  union, 
have  abolished  the  common-law  rules  on  this  subject,  and  while  it 
is  still  held  that  the  personal  property  of  a  decedent  is  the  primary 
fund  for  the  payment  of  his  debts,  yet  his  real  estate  everywhere 
is  now  secondarily  liable,  either  in  the  hands  of  his  personal  rep- 
resentatives, or  of  his  heirs  or  devisees.^ 

§  381.  When  liable  and  to  whom. — Neither  an  heir,  dev- 
isee, or  distributee  is  liable  for  more  than  he  receives  from  a  de- 
cedent's estate,  unless  in  case  of  intermeddling  he  has  made  him- 
self liable  as  an  executor  de  son  tort.^  So  where  a  creditor  seeks 
to  hold  him  responsible  for  a  debt  of  such  decedent  he  must 
allege  and  prove  that  the  heir  has  received  assets  of  the  debtor's 

=  Ahern  v.  Steele,  48  Hun   (N.  Y.)  spect  of  the  real  property  to  sell  or 

517.  lease  it  for  the  payment  of  debts  if 

^  Fisher  v.  TuUer,  122  Ind.  31,  23  N.  necessary.     The   management   of   the 

E.  523;  Rinard  v.  West,  92  Ind.  359;  property,  payment  of   debts   and  ex- 

Clevenger  v.  Matthews,  165  Ind.  689,  penses  of  administration,  and  distribu- 

Id  N.  E.  542.  tion  of  the  property  to  legatees  and 

A  further  departure  from  the  rules  distributees,  are  under  the  supervision 
of  the  common  law  in  this  respect  is  of  probate  courts,  by  whose  order  or 
the  consequence  of  the  American  sys-  decree  the  rights  of  heirs,  devisees, 
tem  of  administration,  according  to  legatees,  and  next  of  kin  are  deter- 
which  all  testamentary  matters,  in-  mined,  and  in  most  states  they  may 
eluding  payment  of  decedent's  debts  also  determine  whether  the  property 
and  legacies,  as  well  as  the  distribu-  passes  to  the  recipients  free  from 
tion  of  the  residue  of  the  estate,  are  claims  of  creditors  or  not,  saving  to 
placed  under  the  control  of  a  class  of  the  creditors  whose  contingent  claims 
courts  unknown  to  the  common  law.  have  not  become  absolute  before  the 
The  general  outlines  of  this  theory  close  of  the  administration  their  re- 
demand  the  speedy  payment  of  the  course  against  the  property  descended 
decedent's  debts,  and  distribution  to  or  administered.  Woerner  Am.  Law 
legatees    and    distributees,    to    accom-  Admin.,  §  575. 

plish  which  the  executor  or  adminis-  *  North-Western  Conference  v.  My- 

trator  is  clothed  with  the  legal  title  ers,  36  Ind.  375 ;  Wilson  v.  Davis,  11 

to  all  personalty,  and  a  power  in  re-  Ind.  141. 


§381         LIABILITY    OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  615 

estate;^  and  since  real  and  personal  property  are  both  liable  for 
debts  the  heirs  will  be  liable  to  the  value  of  both  kinds  of  property 
received  by  them." 

Our  statute  prescribes  that  the  heirs,  devisees  and  distributees 
of  a  decedent  shall  be  liable,  to  the  extent  of  the  property  received 
by  them  from  such  decedent's  estate,  to  any  creditor  whose  claim 
remains  unpaid,  who,  six  months  prior  to  such  final  settlement, 
was  insane,  an  infant,  or  out  of  the  state ;  but  such  suit  must  be 
brought  within  one  year  after  the  disability  is  removed;  provided 
that  suit  upon  the  claim  of  any  creditor  out  of  the  state  must  be 
brought  within  two  years  after  such  final  settlement.^ 

The  rule  that  an  heir,  etc.,  is  bound  only  to  the  extent  of  the 
assets  he  has  received  from  the  ancestor's  estate  is  hardly  ap- 
plicable where  a  sole  heir  or  legatee  gives  bond  to  pay  debts  and 
takes  the  entire  estate  without  administration.® 

The  purpose  and  policy  of  this  statute  is  to  afford  a  remedy 
against  the  heirs,  devisees,  and  distributees  of  an  estate,  in  favor 
of  those  creditors  of  such  estate  whose  claims  remain  unpaid, 
and  who  have  been  prevented  from  proving  their  demands  prior 
to  the  final  settlement  of  the  estate,  on  account  of  infancy,  in- 
sanity, or  non-residence.  The  claims  of  such  persons,  however, 
may  be  presented  for  allowance  and  adjustment  like  any  other 
claims  against  a  decedent's  estate,  and  if  adjusted  and  allowed, 
they  stand  upon  the  same  footing  afterwards  as  other  adjusted 
claims.^ 

''Rinard  V.  West,  92  Ind.  359;  Tick-  ceased  debtor,  is  bad  on  demurrer, 
nor  V.  Harris,  14  N.  H.  272,  40  Am.  Rinard  v.  West,  92  Ind.  359;  Kelley  v. 
Dec.  186.  Adams,  120  Ind.  340,  22  N.  E.  317.  If 
'  State  V.  Lewellyn,  25  Tex.  797.  a  non-resident  files  a  claim  against 
'  Burns'  R.  S.  1908,  §  2965.  The  suit  the  estate,  he  is  no  longer  out  of  the 
against  heirs,  etc.,  authorized  only  Hes  state  within  the  meaning  of  this  see- 
where  there  has  been  administration  tion.  Yoast  v.  Willis,  9  Ind.  548 ;  Bu- 
of  the  deceased  debtor's  estate,  and  senbark  v.  Healey,  93  Ind.  450. 
the  defendants  have  received  assets  *  Colwell  v.  Alger,  5  Gray  (Mass.) 
therefrom,  and  the  plaintiff's  claim  re-  €1 ;  Thomas  v.  Bonnie,  66  Tex.  635,  2 
mains  unpaid ;  and  a  complaint  which  S.  W.  724. 

does  not  aver  these  facts,  and  does  not        '  Silvers  v.  Canary,  114  Ind.  129,  16 

contain  such  averments  as  would  make  N.  E.   166.     A  complaint  against  the 

a  good  cause  of  action  against  the  de-  sole  heir  and  legatee  of  a  decedent. 


6l6  INDIANA    PROBATE    LAW.  §    38 1 

One,  who  by  mistake  has  failed  to  get  credit  from  the  admin- 
istrator for  payment  made  on  a  debt  to  the  decedent,  cannot, 
after  final  settlement,  recover  the  amount  of  such  payments  from 
the  heirs.^**  The  widow  of  a  deceased  debtor  is  not  liable,  under 
these  statutes,  for  property  she  has  received  by  virtue  of  her 
marital  rights.^^ 

The  claim  of  a  creditor  who  may  under  the  statute  proceed 
against  the  heirs,  devisees  and  distributees  of  a  decedent,  is  in 
no  respect  a  lien  upon  the  property  received  by  them.  Their 
liability  is  personal,  and  is  limited  by  the  amount  of  property 
received  by  them  from  the  decedent ;  and  where  an  heir  dies 
against  whom  such  a  claim  exists,  it  stands  on  a  footing  with 
other  general  claims  against  his  estate,  and  must,  like  such  gen- 
eral claims,  be  filed  against  such  estate.  His  heirs  cannot  be  pro- 
ceeded against  under  this  statute,  except  by  showing  that  his 
estate  had  been  fully  administered  and  finally  settled,  and  that 
the  claimant  was  insane,  an  infant,  or  out  of  the  state  for  six 
months  prior  to  its  settlement.^" 

If  the  claimant  has  duly  filed  his  claim  against  the  estate,  he 
can  have  no  right  of  action  against  heirs,  etc.,  under  these 
statutes." 

averring  an   indebtedness  of  the  de-  E.  1125;  Yoast  v.  Willis,  9  Ind.  548; 
ceased  to  the  plaintiff,  that  the  estate  Silvers  v.  Canar\-,  114  Ind.  129,  16  X. 
was  finally  settled  in  due  course  by  E.  166.     A  creditor,  who,  within  six 
an  executrix,  the  plaintiff  being  absent  months   next  before  the   final   settle- 
six   months  prior  to   such  settlement  ment  of  a  decedent  estate,  has  prose- 
and   still  absent  from  the  state,  and  cuted  his  claim  before  the  court  of 
that  the  defendant,  as  heir  and  lega-  this   state  having  jurisdiction  of  the 
tee,  had  received  as  assets   from  the  estate,   is   not   authorized   to-  sue   the 
estate  a  sum  named,  was  good  on  de-  heirs,  devisees  or  distributees.  Busen- 
murrer,  the  suit  having  been  brought  bark  v.  Healey,  93  Ind.  450.  One  who, 
within  two  years  from  such  final  set-  by  mistake,  fails  to  get  the  benefit  of 
tlement.     McCurdy  v.  Bowes,  88  Ind.  a  credit   indorsed   upon   a   note  held 
583.  against  him  by  an  administrator  and 
"  Dickey  v.  Tyner,  85  Ind.  100.  does  not  discover  the  fact  until  after 
"Barnard  v.  Cox,  25  Ind.  251.  the  final  settlement  of  the  estate,  has 
"Rinard  v.  West,  92  Ind.  359;  Ri-  no  cause  of  action  against  the  heirs  or 
nard  v.  West,  48  Ind.  159;  Wood  v.  distributees  of  the  estate.     Dickey  v. 
Leland,  1  Mete.  (Mass.)  387.  Tyner,  85  Ind.  100. 
^'  Stults  V.  Forst,  135  Ind.  297,  34  N. 


§    2)^2         LIABILITY   OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  617 

The  right  bestowed  by  this  statute  being  in  derogation  of  the 
common  law,  one  who  attempts  to  avail  himself  of  it  must  bring 
himself  without  excuse,  fully  within  the  conditions  upon  which 
the  right  rests.  "The  statute  which  gives  the  right  contains  its 
own  limitations,  and  we  can  ingraft  no  exceptions  upon  it.  The 
language  is  clear  and  sweeping,  and  no  exceptions  are  created, — 
nothing  remains  for  the  court  but  to  apply  the  law  as  it  is  writ- 
ten."" 

§  382.  An  administration  necessary. — It  is  necessary,  in 
order  to  charge  the  heirs,  devisees  and  distributees  in  an  action 
based  on  this  statute,  that  an  administration  of  the  estate  should 
he  had,  and  such  administration  must  be  alleged  in  the  com- 
plaint.^^ 

It  is  the  settled  law  of  this  state  that  a  creditor  of  a  decedent's 
estate  must  proceed  to  enforce  his  claim  against  the  estate 
through  an  executor  or  administrator,  and  cannot  be  allowed  to 
sue  the  heirs,  etc.,  where  there  has  been  no  executor  or  admin- 
istrator appointed ;  nor  can  he  maintain  a  suit  against  the  heirs, 
distributees,  or  devisees,  where  there  has  been  an  executor  or 
administrator,  without  showing  a  valid  excuse  for  not  proceed- 
ing against  the  decedent's  estate  before  its  final  settlement.^® 

The  statute  seems  to  contemplate  cases  where  there  has  been 
an  executor  or  administrator  of  the  estate,  for  in  no  other  case 
could  there  be  final  settlement.  The  creditor  may  take  out  let- 
ters if  no  preferred  party  shall  do  so  within  a  limited  time,  and 
there  would  then  be  no  necessity  for  proceeding  against  heirs  in 
the  manner  pointed  out  by  statute. 

The  statutes  make  ample  provision  for  the  filing  and  collect- 

"  Fisher  v.   Tuller,    122   Ind.   31,23  Ind.    378;    Chandler  v.    Chandler,    78 

X.  E.  523;  Clevenger  v.  Matthews,  165  Ind.  417;  Rinard  v.  West,  92  Ind.  359; 

Ind.  689,  76  N.  E.  542.  King  v.  Snedeker,  137  Ind.  503,  Z7  N. 

"  Lockhart  v.  Schlotterback,  12  Ind.  E.  396 ;   Harmon  v.   Dorman,  8  Ind. 

App.  683,  40  N.  E.  1109.  App.  461,  35  N.  E.  1025.    By  the  com- 

"  Wilson  V.  Davis,  2,7  Ind.  141 ;  Cin-  mon  law  the  heir  is  not  liable  for  the 

cinnati  &c.  R.  Co.  v.  Heaston,  43  Ind.  debts  of  the  ancestor.     Fisher  v.  Tul- 

172;   Leonard  v.   Blair,  59  Ind.   510;  ler,  122  Ind.  31,  23  X.  E.  523;  Craven 

Baugh  V.  Boles,  66  Ind.  376;  McCoy  v.  v.  State,  —  Ind.  App.  — ,  97  X.  E.  1021, 
Payne,  68  Ind.  327 ;  Carr  v.  Huette,  7Z 


6l8  INDIANA    PROBATE    LAW.  §    383 

ing  of  all  claims  against  a  decedent's  estate  whether  the  claims 
be  due  or  not,  and  a  claimant  who,  not  being  under  any  statutory- 
disability,  fails  to  avail  himself  of  these  provisions  will  be  barred 
of  any  right  of  action  on  his  claims  against  the  heirs  of  a  de- 
ceased debtor.^  ^ 

The  heirs  of  a  decedent  are  not  liable  for  his  debts  until  after 
administration  is  had  upon  his  estate,  and  all  the  assets  of  such 
estate  in  the  hands  of  the  executor  or  administrator  have  been 
exhausted  and  the  estate  finally  settled.^^ 

And  if  a  claim  has  been  presented  to  the  executor  or  admin- 
istrator, and  the  adjudication  involved  in  the  final  settlement  of 
the  estate,  the  heirs  cannot  be  sued  upon  such  claim  so  long  as 
such  final  settlement  remains  in  force. ^'^ 

The  heir  or  devisee  having  the  right  to  insist  that  the  debts  of 
a  decedent  be  paid  by  the  executor  or  administrator  if  there  be 
assets  of  the  estate  enough  for  that  purpose,  a  complaint  by  a 
creditor  must  come  within  the  terms  of  this  statute."" 

§  383.  When  suit  must  be  brought,  and  how. — A  creditor 
who  labors  under  the  disability  of  non-residence  six  months  prior 
to  the  final  settlement  of  the  estate  of  his  deceased  debtor  suffi- 
ciently removes  that  disability  to  pennit  the  limitation  prescribed 
by  this  statute  to  run  against  him,  by  filing  his  claim  against  the 
estate  in  the  proper  court  in  this  state ;  and  although  such  creditor 
afterward  voluntarily  dismisses  such  claim,  it  will  not  stop  the 
running  of  such  statute.  A  creditor  out  of  the  state  must  have 
been  absent  during  the  whole  of  the  six  months  prior  to  the 
final  settlement  of  the  estate.  And  any  absentee  or  non-resident 
who  prosecutes  any  suit  in  any  court  of  this  state  against  such 

"  Cincinnati  &c.  R.  Co.  v.  Heaston,  N.  E.  166.  A  creditor  of  a  decedent's 
43  Ind.  172.  An  action  cannot  be  main-  estate  must  proceed  to  enforce  his 
tained  by  a  creditor  of  a  decedent's  claim  against  it  through  an  adminis- 
estate  against  the  widow  and  heirs  of  tration,  and  cannot,  in  the  first  in- 
such  decedent,  to  recover  any  of  his  stance,  sue  the  heirs,  devisees  or  lega- 
ordinary  debts.  Carr  v.  Huette,  IZ  tees  where  there  has  been  no,  adminis- 
Ind.  378;  Chandler  v.  Chandler,  78  tration.  King  v.  Snedeker,  137  Ind. 
Ind.  417;  Rinard  v.  West,  92  Ind.  359;  503,  Z1  N.  E.  396. 
Lovering  v.  King,  97  Ind.  130.  '"  Muller  v.  Fowler,  34  Ind.  App.  66, 

'"Barnard  v.  Cox,  25  Ind.  251.  71  N.  E.  512. 

"  Silvers  v.  Canary,  114  Ind.  129,  16 


383         LIABILITY   OF    HEIRS,    DEVISEES,    DISTRIBUTEES. 


619 


estate,  either  in  person  or  by  attorney,  brings  himself  within  the 
jurisdiction  of  the  court  and  is  regarded  as  being  present  in  court, 
and  no  suit  will  lie  at  the  instance  of  any  such  claimant  against  the 
heirs,  devisees  and  distributees  of  such  estate."^ 

A  non-resident  creditor,  or  one  out  of  the  state  for  six  months 
prior  to  the  final  settlement  of  his  debtor's  estate,  is  given  two 
years  by  this  statute  in  which  to  bring  his  action  against  the  heirs, 
etc. ;  and  unless  he  asserts  his  claim  within  that  time  he  will  be 
barred  of  his  remedy  without  regard  to  whether  such  heir  re- 
ceived property  from  such  deceased  debtor  or  not." 

A  non-resident  surety  who  has  paid  the  debt  cannot  enforce 
contribution  against  the  heirs  and  distributees  of  a  deceased  co- 
surety after  the  lapse  of  two  years  from  the  final  settlement  of 
the  latter's  estate,  though  such  surety  may  have  had  no  knowledge 
of  the  insolvency  of  the  principal,  and  no  notice  of  the  non-pay- 
ment of  the  notes,  until  more  than  two  years  after  the  final  settle- 
ment of  the  estate  of  such  deceased  co-surety."" 


^  Yoast  V.  Willis,  9  Ind.  548 ;  Busen- 
bark  v.  Healey,  93  Ind.  450;  Voris  v. 
State,  ex  rel.,  47  Ind.  345.  Fisher,  and 
Owen  Tuller,  as  partners,  carried  the 
United  States  mails  in  Missouri,  un- 
der a  contract  with  the  government. 
Property  of  the  partnership  having 
been  captured  and  destroyed  by  con- 
federate soldiers  during  the  rebellion, 
in  1866,  the  prosecution  of  the  claim 
for  the  money  was  intrusted  to  Tuller, 
who  received  from  the  government,  in 
1867,  in  payment  of  the  claim,  twenty 
thousand  dollars,  and  appropriating  it 
to  his  own  use,  conceaHng  from  Fish- 
er the  fact  of  its  receipt.  After  the 
dissolution  of  the  partnership,  in  1866, 
Tuller  informed  Fisher  that  the  claim 
had  been  disallowed,  and  finally  dis- 
posed of.  Fisher,  relying  upon  the 
statements  of  Tuller,  remained  in  ig- 
norance of  the  facts  until  1884.  Tul- 
ler having  died  in  1873,  his  estate  was 
finally  settled  in  1879.  Fisher  has  been 
a  non-resident  since  1860.     An  action 


was  brought  against  one  of  the  heirs 
in  1886.  Held,  that  the  facts  stated, 
while  sufficient  to  avoid  the  bar  of 
the  statute  of  limitations  if  the  case 
were  between  Tuller,  or  his  adminis- 
trator, and  the  plaintiff,  there  can  be 
no  recovery  against  the  heir,  the  ac- 
tion against  him,  which  is  statutory, 
being  barred  by  the  proviso  relating  to 
the  liability  of  heirs,  which  requires 
the  action  to  be  brought  within  two 
years.  Fisher  v.  Tuller,  122  Ind.  31, 
23  N.  E.  523. 

"^  Freeman  v.  State,  ex  rel,  18  Ind. 
484;  Stults  v.  Forst,  135  Ind.  297,  34 
N.  E.  1125;  Fisher  v.  Tuller,  122  Ind. 
31,  23  N.  523. 

^^Clevenger  v.  Matthews,  165  Ind. 
689,  76  N.  E.  542,  disapproving,  modi- 
fying and  distinguishing  Voris  v. 
State,  47  Ind.  345 ;  Stevens  v.  Tucker, 
87  Ind.  109;  Blair  v.  Allen,  55  Ind. 
409;  Harmon  v.  Dorman,  8  Ind.  App. 
461,  35  N.  E.  1025 ;  Whittern  v.  Krick, 
31  Ind.  App.  577,  68  X.  E.  694. 


620  INDIANA  PROBATE  LAW.  §  384 

A  complaint  against  heirs,  distributees,  or  devisees,  under  the 
above  statute,  to  be  sufficient  must  allege  facts  showing  that  the 
plaintiff  had  a  valid  and  enforcible  demand  against  the  decedent 
at  the  time  of  his  death,  and  that  such  claim  remains  unpaid  after 
final  settlement  of  such  estate  and  at  the  time  of  commencing  the 
action ;  a  final  settlement  of  the  estate  must  be  alleged,  and  the 
date  of  such  settlement,  and  that  during  six  months  prior  to  such 
final  settlement  the  plaintiff  "was  insane,  an  infant,  or  out  of  the 
state,"  according  as  he  may  rely  on  one  or  another  of  the  disabil- 
ities as  saving  his  right  to  sue;  that  there  were  heirs,  devisees,  or 
distributees,  and  that  such  heirs,  devisees  or  distributees  have 
received  assets  from  the  estate  of  the  deceased  debtor,  and  the 
amount  of  such  assets ;  and  such  other  facts  as  would  constitute  a 
good  cause  of  action  against  the  debtor  if  he  were  living. ^'^ 

§  384.  Damages  for  breach  of  covenant. — Lineal  and  col- 
lateral warranties,  with  all  their  incidents,  are  abolished;  but  the 
heirs  and  devisees  of  ever>'  person  who  shall  have  made  any 
covenant  or  agreement  shall  be  answerable  upon  such  covenant 
or  agreement  to  the  extent  of  property  descended  or  devised  to 
them,  and  in  the  manner  prescribed  by  law."^ 

Since  lineal  and  collateral  warranties  have  been  abolished,  a 
claim  for  damages  for  breach  of  covenants,  which  claim,  by 
reason  of  the  disabilities  of  infancy,  insanity  or  non-residence, 
was  not  and  could  not  have  been  filed  against  the  estate  of  a  de- 
ceased covenantor  prior  to  the  final  settlement  of  such  estate ;  or 
by  reason  of  the  fact  that  such  breach  did  not  occur  until  after  a 
time  subsequent  to  the  death  of  such  covenantor,  and  subsequent 
to  the  final  settlement  of  his  estate,  falls  within  the  purview  of 
this  statute,  and  the  heirs,  devisees  and  distributees  of  such  cov- 

^Rinard  v.  West,  48  Ind.  159;  Mc-  ages  to  the  covenantee  for  a  breach  of 

Shirley  v.  Birt,  44  Ind.  382 ;  McClure  the     decedent's     covenant,     occurring 

V.   McClure,   19  Ind.   185;   Rinard  v.  after  the  decedent's  death  and  after 

West,  92  Ind.  359.    Muller  v.  Fovi^ler,  the  final  settlement  of  the  decedent's 

34  Ind.  App.  66,  71  N.  E.  512.  estate.      Harmon  v.   Dorman,  8  Ind. 

''  Burns'  R.  S.  1908,  §  3956.  The  de-  App.  461,  35  N.  E.  1025. 
visees  of  a  decedent  are  liable  in  dam- 


§    384         LIABILITY    OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  62 1 

enantor  are  liable  for  such  damages  to  the  extent  of  the  property 
received  from  him.-® 

Where  such  claim  did  not  accrue  in  time  to  file  it  against  the 
estate,  and  the  claimant  did  not  labor  under  any  of  the  disabilities 
mentioned  in  this  statute,  the  question  as  to  whether  such  claim- 
ant had  a  remedy  at  all  was  discussed  and  decided  in  favor  of  the 
claimant.  The  court  says :  "Upon  full  and  careful  consideration 
we  have  come  to  the  conclusion  that  the  legislature  could  not  have 
meant  to  leave  a  meritorious  class  of  rights  without  remedies 
for  their  breach.  The  opposite  conclusion  in  cases  like  the  pres- 
ent would  very  much  impair  the  faith  and  weaken  the  force  in 
warranties  of  land  titles,  and  become  a  frightful  source  of  un- 
.easiness,  to  otherwise  peaceable  possession."^' 

In  an  action  for  such  damages  it  is  not  necessary  for  the 
complaint  to  show  that  the  damages  are  due  and  unpaid.  And 
a  devisee  is  liable  for  a  breach  of  the  decedent's  covenant, 
even  where  such  breach  occurred  after  the  death  of  the  decedent 
and  after  the  final  settlement  of  his  estate.-* 

The  heirs  of  a  surety  upon  a  penal  bond  are  liable  for  breaches 
of  such  bond  occurring  after  the  settlement  of  the  estate  of  the 
surety.^® 

Unless  the  two  cases  last  cited  may  be  said  to  rest  upon  the 
common-law  liability  of  the  heir  for  the  specialty  debts  of  the 
ancestor,  they  must  be  treated  as  modified  and  in  effect  practically 
overruled  by  the  case  of  Clevenger  v.  Matthews,  165  Ind.  689. 
It  will  be  noticed,  however,  that  this  case  rests  upon  a  simple  con- 
tract debt  of  the  ancestor  and  not  upon  a  sealed  obligation.^" 

In  Wysong  v.  Nealis,  13  Ind.  App.  165,  on  page  174,  it  is  said, 
in  speaking  of  the  breach  of  the  covenant  of  warranty  in  a  deed, 
that  "if  the  breach  occurred  before  a  final  settlement,  then  it  was 
a  proper  claim  against  the  estate.    If  it  occurred  afterward,  then 

**  Hartman  v.  Lee,  30  Ind.  281 ;  Blair  "*  Harmon  v.  Dorman,  8  Ind.  App. 

V.  Allen,  55  Ind.  409.  461,  35  N.  E.  1025. 

="  Blair  v.  Allen,  55  Ind.  409 ;  Stev-  "  Voris  v.  State,  47  Ind.  345 ;  Stev- 
ens V.  Tucker,  87  Ind.  109 ;  Harmon  v.  ens  v.  Tucker,  87  Ind.  109. 
Dorman,  8  Ind.  App.  461,  35   N.   E.  ^  Woerner  Am.  Law  Admin.,  §  574. 
1025. 


622  INDIANA    PROBATE    LAW.  §    385 

the  heirs  and  legatees  would  be  liable  to  the  extent  of  the  property 
received  by  them."^^ 

§  385.  To  what  extent  heir,  etc.,  liable. — The  common-law 
liability  of  the  heir,  devisee,  or  distributee  is  not  changed  by  our 
statute.  In  no  case  can  he  be  held  liable  beyond  the  extent  of  the 
assets  received  by  him  from  the  ancestor.  The  statute  provides 
that  no  more  shall  be  recovered  from  any  defendant,  in  an  action 
under  the  above  statute,  than  his  just  proportion  of  any  such  debt, 
whether  he  has  become  liable  therefor  on  account  of  real  estate 
or  any  interest  therein,  or  on  account  of  personal  assets,  unless 
the  others  are  beyond  the  reach  of  personal  process,  or  unless, 
after  due  diligence,  the  amount  cannot  be  recovered  from  the 
others  who  are  liable  with  him;  in  which  case  he  shall  be  liable 
therefor  to  tlie  extent  of  the  real  and  personal  assets  received  by 
him.^^ 

These  statutes  contain  the  only  provisions  making  the  heirs, 
devisees  and  distributees  of  a  deceased  debtor  liable,  on  account 
of  the  property  received  by  them  from  his  estate,  for  the  debts  of 
such  decedent  f^  but  such  heir,  devisee  or  distributee  is  not  bound 
in  any  case  for  such  debts  beyond  the  amount  of  the  assets  de- 
scended to  him.^*  The  widow  of  such  a  debtor  is  not  such  an 
"heir"  as  will  render  her  liable  under  these  statutes. ^^ 

The  heirs,  being  the  owners  by  descent  of  a  decedent's  real 
estate,  cannot  be  charged  with  the  debts  of  such  decedent  at  the 
pleasure  of  the  executor  or  administrator  of  his  estate.^''     The 

"  Muller  V.  Fowler,  34  Ind.  App.  66,  enforce  a  vendor's  lien  for  a  debt  due 

71  N.  E.  512;  Whittern  v.  Krick,  31  from  the  decedent  on  the  purchase  of 

Ind.  App.  577,  68  N.  E.  694.  real  estate.     Chandler  v.  Chandler,  78 

'-Burns'  R.  S.  1908,  §  2970.     In  an  Ind.  417;  Lord  v.  Wilcox,  99  Ind.  491. 

action  against  the  widow  and  heirs  of  ^"^  Ratcliff  v.  Leunig,  30  Ind.  289. 

a  decedent  to  enforce  a  vendor's  lien  "Bryan  v.  Blythe,  4  Blackf.   (Ind.) 

against  the  real  estate  of  the  decedent,  249;    Stanford   v.    Stanford,   42    Ind. 

it  is  error  to  render  judgment  direct-  485;  McShirley  v.  Birt,  44  Ind.  382; 

ing  the  sale  of  the  real  estate  without  North  Western  Conference  v.  Myers, 

first  exhausing  the  personalty,  unless  36  Ind.  375 ;  Muller  v.  Fowler,  34  Ind. 

the  complaint  aver  the  insufficiency  of  App.  66,  71  N.  E.  512. 

the  personal  property  to  pay  the  debt.  ^'  Barnard  v.  Cox,  25  Ind.  251. 

Query,    whether    an    action    will    lie  ^°  Jennings  v.  Kee,  5  Ind.  257. 
against  the  widow  and  heirs  alone  to 


§    386         LIABILITY    OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  623 

property  of  the  ancestor  which  descends  to  his  heirs,  is  hable 
for  the  payment  of  his  debts,  but  these  debts  are  in  no  sense  the 
debts  of  the  heirs.  As  we  see  by  the  statute  it  is  only  in  certain 
contingencies,  after  the  estate  has  been  finally  settled,  where  the 
heirs  can  be  held  liable  for  such  debts. ^' 

If,  by  the  will  of  the  deceased,  any  part  of  his  estate,  or  any 
one  or  more  of  the  legatees  or  devisees,  shall  be  made  exclusively 
liable  for  the  debt,  in  exoneration  of  the  estate  or  of  the  devisees 
or  legatees,  the  provisions  of  the  will  shall  be  complied  with  in 
that  respect,  and  the  real  estate,  and  the  persons  so  excepted  by  the 
will  shall  be  liable  only  for  so  much  of  the  debt  as  cannot  be  re- 
covered from  those  first  chargeable  therewith.^* 

Persons  who  inherit  property  from  heirs  of  a  decedent  are 
also  liable  for  the  amount  of  property  received.  It  is  the  receipt 
of  property  from  the  deceased  debtor  which  fixes  the  liability, 
and  if  by  another  descent  cast  such  property  comes  to  the  hands 
of  one  not  an  immediate  heir,  or  not  of  the  blood  of  such  debtor, 
the  rule  does  not  change.  The  object  of  the  statute  is  to  enable 
the  creditor  to  fasten  the  liability  upon  the  party  who  has  received 
property  by  descent  out  of  which  he  is  entitled  to  be  paid;  and 
it  can  make  no  difference  whether  such  property  is  real,  personal, 
or  both.^^ 

§  386.  As  to  parties  to  the  action. — As  has  been  seen  the 
heirs,  devisees,  distributees,  and  legatees  are  liable  to  creditors 
for  the  full  amount  of  property  received  by  them  whether  the 
property  was  real  or  personal  or  both,  but  whether  the  action 
must  be  brought  against  all  jointly,  or  whether  the  creditor  can 
hold  each  separately  for  his  proportion  of  the  debt,  or  hold  any 
one  or  more  of  them  liable  for  the  whole  of  the  debt  and  compel 
those  from  whom  a  recovery  is  had  to  seek  contribution,  is  a 
question  about  which  the  cases,  and  the  statutes  in  the  various 
states,  differ. 

Our  statutes  are  not  perfectly  clear  upon  this  subject,  and  the 

"Weakley  v.  Conradt,  56  Ind.  430.       Wood  v.  Leland,  1  Mete.  (Mass.)  387; 
''  Burns'  R.  S.  1908,  §  2971.  Hall  v.  Martin,  46  N.  H.  337. 

^'Rinard    v.    West,    48    Ind.    159; 


624  INDIANA  PROBATE  LAW.  §  386 

Supreme  Court  in  one  case  says:  "Under  the  authorities  it  is 
quite  doubtful  whether  one  heir  can  be  sued  where  there  are 
several,  but  we  do  not  pass  upon  this  question."^*^ 

The  statutes  are  as  follows:  Such  suit  shall  be  instituted  in 
any  court  of  competent  jurisdiction  against  all  who  are  liable 
who  can  be  reached  with  process,  and  their  representatives  by 
petition;  and  the  costs  of  such  suit  shall  be  apportioned  among  the 
defendants  in  proportion  to  the  amount  recovered  of  each  of 
them." 

The  word  "representatives"  used  in  this  section  of  the  statute 
refers  only  to  the  executors  or  administrators  of  such  heirs  or 
devisees,  and  does  not  mean  their  heirs/^ 

Heirs,  devisees  and  distributees  may  be  sued  jointly  in  any  such 
suit,  and  no  suit  shall  be  barred  or  dismissed  for  want  of  includ- 
ing all  the  persons  as  defendants  who  might  have  been  included ; 
and  in  any  stage  of  the  proceedings  the  court  may  award  to  the 
complainant  proper  process  to  bring  in  other  parties,  and  may 
allow  such  amendments  as  may  be  necessary  to  charge  them  as 
defendants,  on  such  terms  as  the  court  shall  think  reasonable." 

No  such  suit  shall  be  delayed,  nor  shall  the  remedy  of  a  claim- 
ant be  suspended,  by  reason  of  the  infancy  of  any  heir,  devisee 
or  distributee;  but  guardians,  to  defend  their  rights  in  such  suit, 
shall  be  appointed  as  in  other  cases/* 

*»Fisher  V.  Tuller,  122  Ind.  31,  23  N.  sons    inheriting    property    from    the 

E.  523.  heirs  of  a  decedent  are  liable  for  debts 

*^  Burns'  R.  S.  1908,  §  2966.  Claims  the  same  as  such  heirs.  Rinard  v. 
against  heirs  must  be  enforced  within  West,  48  Ind.  159.  Heirs  cannot  be 
the  time  prescribed  by  statute.  Free-  sued  for  the  debts  of  the  decedent  un- 
man V.  State,  18  Ind.  484;  Fisher  v.  til  after  the  settlement  of  his  estate. 
Tuller,  122  Ind.  31,  23  N.  E.  523.  Stevens  v.  Tucker,  73  Ind.  73.  Unless 
Heirs  of  a  decedent  can  only  be  held  there  is  administration  on  the  estate 
liable  for  debts  under  the  contingen-  the  heirs  cannot  be  held  liable  for  the 
cies  mentioned  in  the  statute.  Ratcliff  ordinary  debts  of  the  decedent.  Chan- 
V.  Leunig,  30  Ind.  289;  Cincinnati  &c.  dler  v.  Chandler,  78  Ind.  417. 
R.  Co.  V.  Heaston,  43  Ind.  172;  Rinard  "  Burns'  R.  S.  1908,  §  2973.  Where 
V.  West,  48  Ind.  159;  Leonard  v.  Blair,  minors  are  represented,  in  proceedings 
59  Ind.  510;  Rinard  v.  West,  92  Ind.  relating  to  the  settlement  of  estates, 
359.  by  their  guardians  at  law,  or  guardians 

*^  Rinard  v.  West,  92  Ind.  359.  ad  litem,  and  the  proceedings  are  con- 

"^  Bums'  R.   S.   1908,   §  2972.     Per-  ducted    in    good    faith    and  are    free 


§    387         LIABILITY    OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  625 

§  387.  Judgment  or  decree  and  its  enforcement. — Unless  it 
shall  appear  to  the  court  that  the  real  estate  which  has  descended 
or  was  devised  to  any  such  defendant,  and  on  account  of  which 
the  creditor  is  entitled  to  recover  against  him,  was  alienated  by 
him  in  good  faith  subsequently  to  the  final  settlement  of  the  estate 
of  the  ancestor  or  devisor  by  the  executor  or  administrator,  and 
before  the  commencement  of  such  suit,  the  court  may  decree  that 
the  debt  of  the  claimant  shall  be  levied  upon  such  real  estate ;  and 
ever}^  such  decree  against  the  same  shall  have  preference  as  a  lien 
thereon  to  any  judgment  or  decree  obtained  against  such  defend- 
ant personally  for  any  debt  or  demand  in  his  own  right/^ 

But  no  real  estate  thus  descended  or  devised  to  such  heir  or 
devisee,  and  alienated  by  him  in  good  faith  after  the  final  settle- 
ment of  the  estate  of  the  ancestor  or  devisor,  and  before  the 
commencement  of  such  suit  shall  be  liable  to  execution,  or  in  any 
manner  affected  by  a  decree  against  such  defendant  in  the  prem- 
ises ;  but  he  shall  be  personally  liable  on  such  execution  or  decree 
for  the  amount  proper  to  be  recovered  against  him,  as  for  his 
own  debt,  not  to  exceed  the  value  of  such  real  estate,  unless  he  be 
liable  on  account  of  personal  assets,  in  which  case  he  shall  also 
be  liable  to  an  amount  not  to  exceed  the  value  of  such  assets/*^ 

When  such  real  estate  has  been  alienated  by  any  such  defend- 
ant, but  is  liable  to  be  reached  by  such  decree,  the  same  shall  not 
be  sold  by  virtue  thereof  until  the  other  property  of  the  defend- 
ant, subject  to  execution,  has  been  exhausted;  and,  in  that  case, 
any  deficiency  shall  be  supplied  by  resort  to  the  property  thus 
alienated.*^ 

When  a  decree  shall  be  rendered  against  defendants  who  are 
infants,  no  execution  issued  thereon  shall  be  executed  against 

from  fraud,  such  minors  cannot,  after  rected.    Edwards  v.  Beall,  75  Ind.  401. 
arriving  at  age,  have  the  proceedings  A  minor  may  bring  a  suit  to  correct 
set  aside.     Seward  v.  Clark,  67  Ind.  proceedings   on  account  of   fraud  or 
289.     Selling  property  that  does  not  mistake  before  he  arrives  at  age.    Ed- 
belong  to  a  decedent,  and  which  de-  wards  v.  Beall,  75  Ind.  401. 
scends  to  an  heir,  is  such  a  mistake  as  ^  Burns'  R.  S.  1908,  §  2967. 
will    authorize    such    heir,    when     a  ^  Burns'  R.  S.  1908,  §  2968. 
minor,   to    have   the   proceedings    au-  "  Burns'  R.  S.  1908,  §  2969. 
thorizing  such  sale  set  aside  and  cor- 

40— Pro.  L.wv. 


626  INDIANA    PROBATE    LAW.  §    388 

them  until  the  expiration  of  one  year  after  the  rendition  of  such 
decree;  but  such  execution  may  be  executed  against  other  defend- 
ants in  the  same  suit,  who  are  of  full  age,  as  in  other  cases;  and 
whenever  any  heir,  devisee,  or  distributee  shall  have  been  com- 
pelled to  pay  more  than  his  just  proportion,  he  may  have  his 
action  severally  or  jointly  with  others  to  recover  of  the  other 
heirs,  devisees,  or  distributees  liable  therefor,  the  amount  which 
he  may  have  thus  been  compelled  to  pay/^ 

§  388.  When  judgment  may  be  annulled. — In  all  suits  and 
proceedings  instituted  under  the  provisions  of  this  act  in  which 
infants  may  be  plaintiffs,  complainants,  or  defendants,  such  in- 
fants shall  appear  by  their  guardian  at  law  or  guardian  ad  litem, 
appointed  by  the  court;  and  such  suits  or  proceedings,  if  con- 
ducted in  good  faith,  shall  not  be  liable  to  be  opened  by  such 
infants  upon  arriving  at  full  age.^'' 

Any  such  infant,  after  arriving  at  full  age  may,  within  three 
years  thereafter,  upon  the  proper  proceedings  being  instituted 
by  him,  have  any  judgment,  order  or  decree,  opened  or  annulled, 
or  set  aside,  if  he  can  show  that  the  same  was  obtained  by  mistake 
or  through  fraud. ^'^ 

It  is  error  to  render  a  decree  against  an  infant  defendant 
without  proof  of  the  allegations  in  the  complaint  or  petition. 
A  guardian  ad  litem  cannot,  on  behalf  of  an  infant  defendant, 
admit  the  truth  of  such  allegations  nor  consent  to  a  decree  with- 
out proof.  ^^ 

In  one  case  it  is  decided  that  the  entire  law  of  the  state  on  this 
subject  is  compactly  stated  or  clearly  implied  in  these  two  sections 
of  the  statute,  and  one  is  the  supplement  of  the  other.  It  is  held 
that  if  the  proceedings  of  a  proper  court  in  the  settlement  of  a 
decedent's  estate  have  been  conducted  in  good  faith  and  are  free 
from  mistake  or  fraud,  and  the  infant  parties  to  such  proceedings 

"^  Burns'  R.  S.  1908.  §  2974.  8  Blackf.  (Ind.)  300;  ^lartin  v.  Starr, 

*"  Burns"  R.  S.  1908.  §  2975.  7  Ind.  224 ;   McEndree  v.  McEndree, 

'"  Burns"  R.  S.  1908.  §  2976.  12  Ind.  97;  Blake  v.  Douglass,  27  Ind. 

='  Grain  v.  Parker,  1  Ind.  374 ;  Ward  416. 
V.  Kelly,  1  Ind.  101 ;  Hough  v.  Doyle, 


§    388         LIABILITY    OF    HEIRS,    DEVISEES,    DISTRIBUTEES.  627 

have  appeared  therein  by  their  guardian  at  law  or  guardian  ad 
litem,  appointed  by  such  court,  then  such  proceedings  are  final  and 
are  not  liable  to  be  opened  up,  or  annulled,  or  set  aside  by  such 
infants  upon  arrival  at  full  age.  If,  however,  such  proceedings 
have  not  been  conducted  in  good  faith,  and  if  the  infant  parties 
have  not  appeared  therein  by  their  guardian  at  law  or  guardian  ad 
litem,  then  such  proceedings  are  not  necessarily  final,  but  they  are 
liable  to  be  opened  by  such  infants  upon  arriving  at  full  age.  In 
such  a  case  the  remedy  of  such  infant,  upon  his  arrival  at  full 
age,  is  not  an  appeal  to  the  Supreme  Court  from  the  proceedings 
complained  of;  but  in  a  direct  proceeding  to  be  instituted  by  such 
infant,  at  any  time  within  three  years  after  he  becomes  of  full 
age,  he  may  have  any  judgment,  order  or  decree,  made  or  ren- 
dered in  and  during  the  final  settlement  of  the  estate,  "opened  or 
annulled  or  set  aside,  if  he  can  show  that  the  same  was  obtained 
by  mistake  or  through  fraud."" 

■"Seward  v.  Clark,  67  Ind.  289.     A  court  when  the  guardian  ad  litem  is 

guardian  ad  litem  cannot  be  appointed  appointed   no   notice   or   summons   is 

for  an  infant,  nor  can  any  judgment  be  necessary.    Horner  v.  Doe,  1  Ind.  130, 

rendered  against  the  infant  until  after  48  Am.  Dec.  355;  Alexander  v.  Frary, 

summons  has  been  issued  and  served  9  Ind.  481.    A  judgment  against  an  in- 

upon  such  infant.  Robbins  v.  Robbins,  fant  without  actual  proof  is  error.  De 

2  Ind.  74;  Martin  v.  Starr,  7  Ind.  224;  La  Hunt  v.  Holderbaugh,  58  Ind.  285; 

or,  if  a  non-resident,  publication  had  Richards    v.    Richards,    17    Ind.    636; 

against  him.  Carver  v.  Carver,  64  Ind.  Blake  v.  Douglass,  27  Ind.  416;  Cosby 

194 ;  Gefken  v.  Graef,  77  Ga.  340.  But  v.  Powers,  137  Ind.  694,  37  N.  E.  321. 
if    the    infant    himself    is    present    in 


CHAPTER  XVIIL 

SUITS  BY  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS. 

§  389.  Suits  against.  §  400.  Same— Administrator's  right. 

390.  Same— On  individual  promise.  401.  Construing  statutes  together. 

391.  Liability  for  torts.  402.  The  damages,  and  how  meas- 

392.  Power  to  maintain  suits.  'ured. 

393.  Right  to  sue  on  notes,  mort-  403.  Distribution  of  the  damages. 

gages,  etc.  404.  Right  of  set-off. 

394.  Right  to  sue  on  covenants.  405.  Judgments    against    executors, 

395.  Evidence    of    power    to    sue —  etc. 

Pleadings,  copy  of  letters,  etc.  406.  Proceedings  after  judgment. 

396.  Survival  of  actions.  407.  Effect    of    death    of    party    to 

397.  Limitation  of  actions.  judgment. 

398.  Joinder    of    causes— Right    of  408.  Proceedings  —  How    long    de- 

third  person  to  sue.  layed. 

399.  Actions    for   injuries   resulting        409.  Revivor  of  judgment. 

in  death.  410.  Liability  for  costs. 

§  389.  Suits  against. — At  common  law  an  executor  or  ad- 
ministrator was  bound  by  all  the  contracts  of  the  decedent  and 
could  be  compelled  to  perform  them,  or  to  respond  in  damages 
for  their  breach,  unless  the  contract  was  of  such  a  nature  that  it 
involved  the  prosecution  of  the  business  of  the  deceased,  or  was 
otherwise  incompatible  with  the  duties  of  the  executor  or  admin- 
istrator in  settling  the  estate.  All  claims  founded  on  any  obliga- 
tion, contract,  debt,  covenant,  or  other  duty  of  the  decedent  upon 
which  he  might  have  been  sued  in  his  lifetime,  survived  his  death 
and  were  en  forcible  against  his  executor  or  administrator,  and 
this  liability  was  not  dependent  on  such  officer  being  named  in  the 
contract,  but  was  cast  upon  him  by  the  law  as  one  of  the  conse- 
quences of  his  being  the  personal  representative  of  the  deceased. 

628 


§    389  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  629 

An  exception  to  this  rule  existed  in  case  of  contracts  which  called 
for  personal  services  of  the  deceased.^ 

But  as  the  statute  now  makes  ample  provision  for  the  presenta- 
tion, allowance  and  payment  of  claims  and  demands  against  the 
estate  of  a  decedent,  an  occasion,  will  seldom,  if  ever,  arise  dur- 
ing the  course  of  the  administration  of  the  estate,  when  a  suit  in 
the  regular  form  will  lie  against  an  executor  or  administrator. 
The  whole  purpose  and  theory  of  the  law  is  against  it.  The 
statute  bars  almost  all  actions  which  may  be  regularly  brought 
against  the  personal  representatives  of  a  decedent.  No  action 
shall  be  brought  by  complaint  or  summons  against  the  executor 
or  administrator  of  an  estate  for  the  recovery  of  any  claim 
against  the  decedent;  or  upon  any  contract  executed  jointly,  or 
jointly  and  severally,  by  such  decedent  and  any  other  person ;  or 
upon  any  joint  judgment  founded  upon  such  contract.^ 

The  holder  of  any  such  joint  contract  must  enforce  its  collec- 
tion against  the  estate  in  the  regular  way  and  not  by  civil  suit.^ 

But  executors  and  administrators  are  subject  to  garnishment 
at  the  suit  of  any  attachment  creditor  of  the  person  who  has 
money  or  choses  in  action  in  the  hands  of  such  executor  or  ad- 
ministrator at  the  time  of  the  service  of  such  garnishee  process, 
in  the  same  manner  and  to  the  same  extent  as  other  persons  are 
liable  to  be  garnished  in  attachment  proceedings.* 

The  unascertained  shares  of  a  decedent's  estate  in  the  hands  of 
the  executor  or  administrator  for  distribution  are  subject  to  gar- 

^  Touch.,     482 ;     Williams     Extrs.,  proceed     against     the     administrator 

1721;    Went.    Off.    Extrs.,    229,   243;  alone,  unless  objection  were  made  by 

Dickinson  v.  Calahan,  19  Pa.  St.  227;  motion  before  pleading.     Corbaley  v. 

Wheatley   v.    Lane,    1    Saund.    216a;  State,  81  Ind.  62. 

Harrison  v.  Sampson,  2  Wash.  (Va.)  '  State  v.  Cunningham,  101  Ind.  461. 

155.  An   administrator   cannot,   under   the 

*  Burns'  R.  S.  1908,  §  2829.    Prior  to  statute,  be  joined  as  defendant  in  a 

the  enactment  of  this  statute  in  1881  an  suit  on  a  joint  and  several  bond  exe- 

ordinary  suit  might  be  brought  against  cuted  by  his  intestate,  and  the  pen- 

a  principal  debtor  and  the  administra-  dency  of  such  a  suit  is  no  reason  for 

tor    of    the    estate    of    his    deceased  delay  of  final  settlement.  Norwood  v. 

surety;  and  if  the  principal  were  not  Harness,  98  Ind.  134,  49  Am.  Rep.  739. 

served  with  process,   the  suit  might  *  Burns'  R.  S.  1908,  §  977. 


630  INDIANA    PROBATE    LAW.  §    39O 

nishment  in  a  suit  at  the  hands  of  a  creditor  of  the  person  to 
whom  any  such  share  is  paya1>le.^ 

If,  however,  a  defendant  die  after  a  suit  has  been  regularly 
brought  against  him  l)y  complaint  and  process,  such  action  may 
be  continued  to  final  judgment  against  his  executor  or  adminis- 
trator.** 

An  action  will  not  lie  against  an  administrator  in  one  state 
upon  a  decree  obtained  against  a  different  administrator  of  the 
same  estate  appointed  by  the  authority  of  another  state.  A  noted 
writer  says:  "Where  administrations  are  granted  to  different 
persons  in  different  states,  they  are  so  far  deemed  independent 
of  each  other,  that  a  judgment  obtained  against  one  will  furnish 
no  right  of  action  against  the  other,  to  affect  assets  received  by 
the  latter  in  virtue  of  his  own  administration ;  for  in  contempla- 
tion of  law  there  is  no  privity  between  him  and  the  other  admin- 
istrator."' 

§  390.  Same — On  individual  promise. — An  administrator 
who  undertakes  in  writing  to  pay  the  debt  of  his  intestate  when 
assets  of  the  estate  come  into  his  hands,  is  liable  individually 
upon  such  undertaking  upon  the  receipt  of  such  assets;  or  if  the 
undertaking  is  based  upon  a  consideration  which  accrued  after 
the  death  of  such  intestate,  and  is  to  do  a  thing  which  the  estate 
was  not  bound  to  do,  it  will  be  regarded  as  the  original  contract 
or  promise  of  the  administrator,  and  he  will  be  held  personally 
liable.    A  promise  made  by  him  will  bind  him  personally,  but  not 

"  Stratton  v.  Ham,  8  Ind.  84,  65  Am.  thereon.      State    v.    Cunningham,    101 

Dec.  754;  Simonds  v.  Harris,  92  Ind.  Ind.  461. 

505.    An  action  cannot  be  commenced  '  Burns'  R.  S.  1908,  §  272.     Lawson 

by  complaint  and  summons  against  an  v.  Newcomb,  12  Ind.  439.     Executors 

executor    or    administrator    and    any  and  administrators  may  be  joined  as 

other  person  or  persons,  or  his  or  their  defendants  in  actions  with  other  de- 

legal   representatives,  upon  any   con-  fcndants  in  cases  where  the  decedent 

tract  executed  jointly,  or  jointly  and  might  be  joined  if  living.     Braxton  v. 

severally,  by  the   decedent  and   such  State,  25  Ind.  82;  Owen  v.  State,  25 

other  person  or  persons ;  but  the  hold-  Ind.  107. 

er  of   such   contract   can   enforce   its  ^  Story,    Conflict    of    Laws,    §    522; 

collection  against  the  estate  of  such  Slauter    v.    Chenowith,    7    Ind.    211; 

decedent    only    by    filing    his    claim  Stacy  v.  Thrasher,  6  How.  (U.  S.)  44, 

12  L.  cd.  337. 


390 


EXECUTORS    ANH    ADM  I  MSTUArOKS     SUITS. 


^>3t 


the  estate,  unless  facts  are  stated  showing-  the  right  to  charge  the 
estate,  or  tliat  the  consideration  for  the  pronn'sc  arose  prior  to  the 
intestate's  death." 

While  an  executor  or  administrator  has  no  power  to  hind  (he 
estate,  yet  an  action  may  Ije  maintained  against  him  in  his  repre- 
sentative character,  upon  a  promise  made  in  that  character  to  dis- 
charge an  existing  liahility  against  the  estate."  I'.iil  in  causes  of 
action  that  have  occurred  since  the  tleath  of  the  dcixdi-nl,  the 
personal  representative  will  he  liahle  individually.'" 

He  is  also  personally  liahle  on  his  note  for  money  hmrowcd 
for  the  estate."  The  mere  fact  thai  \w  di-srrihcs  himself  as 
executor  or  administrator  in  a  note,  hond,  etc.,  does  iml  limit  his 
personal  liahility,  unless  he  e.Kpressly  stipulates  to  pay  out  of 
assets  of  the  estate.'- 

A  promi.se  hy  an  e.xecutor  or  administrator  to  i)ay  a  deht   of 


"Mills  V.  Kuykcndall,  2  iilackf. 
(Ind.)  47;  Carter  v.  Thoiiias,  3  Iiid. 
213;  Cornthwaitc  v.  l-'irst  Nat.  liank, 
57  Ind.  268;  lloldcrbauKh  v.  Turpiii, 
75  Ind.  84,  39  Am.  Rep.  124;  Moody  v. 
Shaw,  85  Ind.  88.  Coniplainl  in  two 
paraj^raijlis,  in  tlie  ordin.irv  form, 
against  an  ailministralor :  (1)  Aik'g- 
ing  a  contraet  vvitli  tlie  defenckmt  to 
saw  for  him  certain  logs  of  the  de- 
cedent into  hnnl)cr  at  a  certain  price; 
that  the  work  was  done  and  the  de- 
fendant failed  to  pay  on  request.  (2) 
Alleging  a  promise  of  the  defendant 
to  pay  a  certain  sum  for  sawing  lum- 
ber for  the  decedent  in  his  lifetime, 
which  lumber  remained  in  the  plaint- 
iff's possession,  and  on  which  he  held 
a  lien  for  the  sawing;  that  the  lumber 
was  delivered  to  the  defendant  on  his 
promise  to  pay  for  the  sawing,  and 
that  on  request  he  failed  to  pay.  Held, 
that  both  paragraphs  were  good  on 
demurrer.     Bolt  v.  Barr,  95  Ind.  243. 

•Austin  V.  Munro,  47  N.  Y.  360; 
Davis  V.  Frencli,  20  Me.  21,  37  Am. 
Dec.  36.    The  plaiiililT  .sold  ;uid  dcliv- 


riH'(|  ;i  iiiiiiniiiHnt  lo  A.  ill  liis  lifclime. 
After  A.'s  ileatii,  ihc  ;niiiiiiiisn\i(()r  of 
his  estate  wrote  a  icllt  r  lo  llie  i)laintil'f 
wliicli  ronl.iiiuil  llic  following  state- 
nuiil  :  "I  will  liK'  llic  l)ill  for  yon 
(;igaiiisl  lilt.'  I'slali')  and  ^''1  ''i^  iiiiuli 
as  the  estate  will  pay,  and  I  will  settle 
the  rest."  The  letter  was  signed  by 
tile  administrator  as  an  individual, 
and.  not  otherwise.  I  lild,  that  there 
was  no  consideralioii  lo  support  the 
promise  contained  in  the  k:Uer  lo  set- 
tle the  balance  of  the  claim  against 
the  estate-,  ,111(1  tli.'it  ihe  administrator 
vv;is  not  li.ililr  ilii-n-oii,  Vo^cl  v.  ()'- 
Toole,  2  Ind.  App.  196,  28  N.  E.  209. 

'"May  V.  May,  7  I'la.  207,  68  Am. 
Dec.  431  ;  Kirclmer  v.  McRae,  80  N. 
Car.  219. 

*'  Merchants'  Nat.  Bank  v.  Weeks, 
53  Vt.  115,  38  Am.  Rep.  661. 

"  Patlersf)n  v.  Craig,  1  lia.xt. 
(Teim.)  291;  .Studebaker  Bros.  Mfg. 
Co.  V.  Montgomery,  74  Mo.  101  ; 
Sdmiiltler  v.  Simon,  101  N.  Y.  .S.SI,  5 
N.  K  AS2,  .S4  Am.  Rop.  737. 


632  INDIANA    PROBATE    LAW.  §    391 

his  decedent,  or  to  answer  for  damages  out  of  bis  own  estate  is 
within  the  statute  of  frauds,  and  unless  upon  a  sufficient  consid- 
eration and  reduced  to  writing  will  not  bind  him.  The  rule  ap- 
pears to  be  that  where  the  cause  of  action  existed  against  the 
deceased,  the  executor  or  administrator  may  make  himself  per- 
sonally liable  by  a  written  promise  founded  upon  a  sufficient  con- 
sideration ;  but  he  cannot  create  a  debt  against  the  deceased.  And 
it  is  immaterial  how  clearly  the  intent  to  do  so  may  be  expressed ; 
with  no  power  to  bind  the  estate  he  only  binds  himself  by  such 
contract.'^  And  actions  upon  such  contracts  may  be  maintained 
against  an  executor  or  administrator  personally,  although  they 
may  have  been  signed  by  him  in  his  representative  capacity.^* 

Forbearance  by  a  creditor  is  a  sufficient  consideration,  and  an 
executor  or  administrator  promising  to  pay  a  debt  of  the  estate  at 
a  future  day,  or  with  interest,  makes  the  debt  his  own.'' 

Where  the  nature  of  the  debt  is  such  as  necessarily  to  make  the 
defendant  liable  personally,  the  judgment  should  be  de  bonis 
propriis,  although  he  is  charged  with  the  promise  as  executor  or 
administrator.^^ 

The  acknowledgment  or  promise  of  one  joint  executor  or  ad- 
ministrator shall  not  render  any  co-executor  or  administrator 
liable,  where,  except  for  such  acknowledgment  the  claim  would 
be  barred  by  the  statute  of  limitations.^^ 

§  391.  Liability  for  torts.— The  rule  of  the  common  law 
was  that  if  an  injury  was  done  either  to  the  person  or  property  of 
another  for  which  damages  alone  could  be  recovered,  the  action 
died  with  the  death  of  the  wrongdoer.  In  this  state  all  such 
causes  of  actions  survive,  except  a  cause  of  action  arising  out  of 
an  injury  to  the  person  which  cause  dies  with  the  death  of  either 

"  Sidle  V.  Anderson,  45  Pa.  St.  464 ;  57    Ind.    268 ;    Wilton    v.    Eaton,    127 

Davis  V.  French,  20  Me.  21,  Z1  Am.  Mass.  174;  Davis  v.  Crandall,  101  N. 

Dec.  Z(i;  Rusling  v.  Rusling,  47  N.  J.  Y.  311,  4  N.  E.  721. 

\..\ ;  Baker  v.  Fuller,  69  Me.  152.  "  Williams  Executors,  1784. 

"Ellis    v.    Merriman,    5    B.    Mon.  "Burns'  R.  S.  1908,  §  304;  Kirk  v. 

(Ky.)  296;  Carter  v.  Thomas,  3  Ind.  Hiatt,  2  Ind.  322;   Bottles  v.   Miller, 

213;  Walker  v.  Patterson,  36  Me.  273.  112  Ind.  584,  14  N.  E.  728. 

"Cornthwaite  v.   First  Nat.   Bank, 


§    391  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  633 

party  except  in  cases  in  which  an  action  is  given  for  an  injury 
causing  the  death  of  any  person,  and  actions  for  seduction,  false 
imprisonment,  and  maHcious  prosecution,^^  and  where  causes  of 
action  survive  they  may  be  commenced  by  or  against  representa- 
tives of  the  deceased.^**  Except  actions  for  promises  to  marry,  it 
would  seem  that  all  other  causes  of  action  arising  out  of  injury 
to  property,  those  commonly  known  as  torts,  survive  and  may  be 
brought  by  or  against  the  representatives  of  the  deceased  party."'^ 
The  action  must  involve  injury  to  the  estate  and  not  to  the  per- 
son, the  rule  being  that  where  the  injury  complained  of  affects 
primarily  property  and  property  rights,  and  the  injury  to  the 
person  is  merely  incidental,  the  cause  of  action  survives,  but 
where  the  injury  to  property  is  merely  an  incident,  as  loss  of  time 
and  expenses  incurred  in  endeavoring  to  be  cured  of  the  injury, 
and  the  primary  purpose  of  the  action  is  a  recovery  for  injuries 
to  the  person,  as  mental  anguish,  pain  and  bodily  suffering,  or 
injury  to  character,  the  same  does  not  survive.^^ 

It  has  been  held  under  these  statutes  that  an  action  against  an 
attorney  for  damages  for  a  breach  of  duty  to  his  client  may,  at 
his  death,  be  prosecuted  against  his  administrator,"  the  statute 
providing  that  no  action  shall  abate  by  the  death  or  disability  of 
a  party,  if  the  cause  of  action  sui"vive  or  continue. ^^ 

An  administrator  as  such  cannot  commit  a  tort;  and  if  he  be- 
comes liable  for  a  tort  he  is  liable  as  an  individual  and  not  in  h'.s 
official  capacity.  Replevin  is  an  action  in  tort,  and  in  replevin 
against  an  executor  or  administrator  he  may  defend  by  showing 
that  he  holds  the  property  as  administrator  or  executor,  and  that 
in  that  capacity  he  came  into  possession  of  it,  and  that  it  is  the 
property  of  the  estate.  This  being  a  possessory  action  the  plain- 
tiff" cannot  recover  unless  he  shows  the  right  to  the  property  re- 

"  Burns' R.  S.  1908,  §  283.  156.   17  Am.   St.  355,  7  L.  R.  A.  90; 

"  Burns'  R.  S.  1908,  §  282.  Hedekin  v.  Gillespie,  33  Ind.  App.  650, 

"■'  Burns'  R.  S.  1908,  §  284.  72  N.  E.  143. 

='Feary  v.  Hamilton,  140  Ind.  45,  39  "  Neuman  v.  Gates,  165  Ind.  171,  72 

N.  E.  516;  Boor  v.  Lowrey,  103  Ind.  N.  E.  638. 

468,  3  N.  E.  151,  53  Am.  Rep.  519n;  ==  Burns'  R.  S.  1908,  §  272;  Brown  v. 

Hess  V.  Lowrey,  122  Ind.  225,  23  X.  E.  Clow,  158  Ind.  403,  62  N.  E.  1006. 


634  INDIANA    PKOBATK    LAW.  §    392 

plevied;  hence  it  is  a  good  defense  to  the  action  to  plead  property 
in  a  third  person."^ 

An  executor  or  administrator  is  personally  liable  to  third  per- 
sons for  injuries  caused  by  his  cnvn  tortious  or  negligent  acts  in 
the  administration  of  the  estate."" 

He  is  also  personally  liable  for  all  breaches  of  ordinary  trusts 
which  arise  from  his  office."" 

But  he  is  not  liable  for  the  wrongs  and  mismanagement  of  a 
co-administrator  in  a  matter  in  which  he  is  not  himself  culpable."^ 

The  estate  is  not  liable  for  the  torts  of  the  executor  or  admin- 
istrator; nor  is  it  liable  for  any  damages  growing  out  of  the  false 
representations,  warranties,  or  statements  made  by  the  executor 
or  administrator.  Such  statements,  representations,  etc.,  are  his 
individual  tort  for  which  he  alone  can  be  held  individually  liable 
to  any  person  damaged  by  a  reliance  thereon."^ 

§  392.  Power  to  maintain  suits. — Every  executor  or  ad- 
ministrator shall  have  full  power  to  maintain  any  suit  in  any 
court  of  competent  jurisdiction,  in  his  name  as  such  executor  or 
administrator,  for  any  demand  of  whatever  nature  due  the  dece- 
dent in  his  lifetime,  for  the  recovery  of  possession  of  any  prop- 
erty of  the  estate,  and  for  trespass  or  waste  committed  on  the 
estate  in  his  lifetime ;  but  he  sliall  not  be  liable,  in  his  individual 
capacity,  for  any  costs  in  such  suit,  and  shall  have  the  power  at 
his  option  to  examine  the  opposite  party,  under  oath,  pending 
such  demand ;  but  evidence  thus  obtained  shall  not  afterwards  be 
used  in  any  prosecution  against  such  party.^" 

=*  Rose  V.  Cash,  58  Ind.  278.  Moody  v.  Shaw,  85  Ind.  88 ;  Riley  v. 

'*  Daily  v.  Daily,  66  Ala.  266;  La-  Kepler,  94  Ind.  308;  Rodman  v.  Rod- 

morere  v.  Cox,  32  La.  Ann.  246;  Simp-  man,  54  Ind.  444;  Mills  v.  Kuykendall, 

son  V.  Snyder,  54  Iowa  557,  6  N.  W.  2  Blackf.  (Ind.)  47. 

730.  =^  Burns'   R.   S.    1908,   §  2808.     The 

^Williams  Executors,  1796.  right  to  sue  for  money  or  other  per- 

"  Davis    V.    Walford,    2    Ind.    88;  sonalty  of  a  decedent  belongs  to  the 

Braxton  v.  State,  25  Ind.  82 ;  State  v.  personal  representative,  not  to  the  heir 

Wyant,  67  Ind.  25 ;   Suydam  v.  Bas-  or  widow.     Pond  v.  Sweetser,  85  Ind. 

tedo,  40  N.  J.  Eq.  433,  2  Atl.  808.  144.    An  administrator  will  not  be  al- 

•*  Huffman  v.  Hendry,  9  Ind.  App.  lowed  to  sue  a  distributee  to  foreclose 

324,  36  N.  E.  727,  53  Am.   St.  351 ;  a  mortgage  when  the  debts  of  the  de- 


392 


EXECUTORS    AND   ADMINISTRATORS     SUITS. 


635 


Under  the  law  in  this  state  executors  and  administrators  are 
clothed  with  the  same  rights  and  powers,  with  respect  to  the  per- 
sonal estate,  as  the  decedent  was  in  his  lifetime;  and  by  virtue  of 
these  statutes  they  can  maintain  actions  for  trespass,  or  for  in- 
juries committed  both  before  and  after  his  death;  actions  of  re- 
plevin or  for  possession,  actions  of  trover  and  conversion,  actions 
for  money  had  and  received,  for  the  value  of  goods  sold  and  con- 
veyed, and  actions  of  ejectment  for  the  recovery  of  leasehold 
estates  and  for  any  injury  that  might  be  done  to  such  leasehold 
estate.  They  have  ample  authority  to  prosecute  any  suit  with  re- 
spect to  the  personal  estate,  which  the  testator  or  intestate  could 
have  prosecuted  in  his  lifetime.  They  may  also  maintain  actions 
for  trespass  upon  real  estate  committed  during  the  lifetime  of  the 
deceased.^** 

And  being  expressly  authorized  by  statute  to  sue  it  is  not  nec- 
essary for  an  executor  or  administrator  to  join  with  him  in  such 
suit  the  person  for  whose  benefit  the  action  is  prosecuted. ^^ 

Where  an  action  has  been  commenced  and  the  plaintiff  dies  be- 
fore its  termination,  his  personal  representative  may  be  substi- 


cedent  have  been  paid  and  there  is 
sufficient  to  pay  all  legacies,  and  it  is 
agreed  that  the  mortgagor  shall  take 
the  mortgage  notes  as  a  part  of  his 
distributive  share.  Rauh  v.  Weis,  133 
Ind.  264,  32  N.  E.  880. 

'"  Smith  V.  Dodds,  35  Ind.  452 ;  Du- 
chane  v.  Goodtitle,  1  Blackf.  (Ind.) 
117.  .'\n  administrator,  as  a  trustee 
of  the  creditors,  may  maintain  an  ac- 
tion on  a  note  and  mortgage  surren- 
dered by  his  intestate  without  consid- 
eration to  defraud  his  creditors;  but 
the  complaint  must  show  that  the  in- 
testate, at  the  time  of  the  transfer  al- 
leged to  be  fraudulent,  had  no  other 
property,  subject  to  execution,  suf- 
ficient to  pay  his  debts.  Johnson  v. 
Jones,  79  Ind.  141.  An  action  lies 
in  favor  of  an  administrator  for 
money  received  by  defendants   from 


the  decedent  under  circumstances 
showing  that  in  equity  and  good  con- 
science they  ought  not  to  retain  it.  In 
such  an  action  by  an  administrator  de 
bonis  non,  a  complaint  alleging  that 
the  administratrix,  who  was  the 
widow,  resigned  without  having  ad- 
mininstered  upon  any  part  of  the  es- 
tate; that  the  personal  estate,  except 
the  note  sued  on,  did  not  exceed  five 
hundred  dollars;  that  the  debts 
amounted  to  six  thousand  five  hun- 
dred dollars,  and  that  the  intestate 
died  seized  of  no  other  property,  real 
or  personal,  sufficiently  showed  that 
the  administratrix  had  made  no  dispo- 
sition of  any  portion  of  the  assets  that 
could  have  been  applied  to  the  pay- 
ment of  debts.  Johnson  v.  Jones,  79 
Ind.*  141. 
^  Burns'  R.  S.  1908,  §  252. 


636  INDIANA  PROBATE  LAW.  §  392 

tilted  as  the  plaintiff  in  such  action,  if  the  action  is  one  which 
survives  to  the  personal  representative.^'- 

An  executor  or  administrator  may  maintain  an  action  on  an 
award  made  to  the  decedent  in  his  lifetime;  and  the  right  is  the 
same  whether  the  matter  submitted  to  arbitration  arose  out  of 
contract  or  out  of  tort.^^ 

In  this  state  an  executor  or  administrator  may  maintain  an 
action  for  the  conversion  of  personal  property  owned  by  a  dece- 
dent at  the  time  of  his  death.''*  In  all  such  cases  the  right  of 
action  is  in  the  personal  representative  and  not  in  the  heirs  or 
widow.^° 

An  executor  of  an  executor  shall  have  no  authority  to  com- 
mence or  maintain  any  action  or  proceeding  relating  to  the  estate 
or  rights  of  the  testator  of  the  first  executor,  or  to  take  control 
thereof  as  such  executor.''*' 

An  administrator  or  executor  may  compel  partition  as  a  tenant 
in  common  or  joint  tenant  may  do,  whenever,  in  the  discharge  of 
his  duties  as  such,  it  shall  be  necessary  for  him  to  sell  the  estate 
of  the  decedent  therein."  But  the  court  shall  not  order  or  affirm 
partition  contrary  to  the  intention  of  the  testator  expressed  in 
his  will.^* 

"'  Evans  v.  Nealis,  69  Ind.  148.  itemized  account  alleging  that  the  de- 

^  Dickerson    v.    Tyner,    4    Blackf.  fendant  is  indebted  to  the  plaintiff  in 

(Ind.)  253.  a  certain  sum  of  money  for  the  rent, 

'■'  Ferguson  v.  Barnes,  58  Ind.   169.  use  and  occupation  of  certain  land  be- 

In  an  action  by  an  administrator,  for  longing  to  his   decedent,  is  good  on 

conversion,  an  answer  that  the  cause  demurrer  for  the  want  of  facts.    Ket- 

of  action   did  not  accrue  within  six  cham  v.  Barbour,  102  Ind.  576,  26  N. 

years    before    the    commencement    of  E.  127. 

the  action,  was  sufficient,  though  the  '*  Burns'  R.  S.  1908,  §  2813. 

complaint  averred  the  appointment  of  ^  Burns'  R.  S.  1908,  §  1243. 

the    administrator    within    that    time.  ^*  Matlock    v.     Nave,    28    Ind.    35. 

The  statute  did  not  commence  to  run  Where  lands  are  devised  to  an  exec- 

until  the  appointment  was  made,  and  utor  in  trust  for  certain  purposes,  he 

the  answer  in  effect  averred  that  he  is  the  proper  plaintiff  in   a  suit   for 

was    not    appointed   within    the    time  trespass  thereto  after  the  death  of  the 

named.    Douglass  v.  McCarer,  80  Ind.  testator.     Taylor   v.   Fickas,   64   Ind. 

91.  167,  31  Am.  Rep.  114,  limited.    Pitts- 

''  Pond  V.  Sweetser,  85  Ind.  144.    A  burg  &c.  R.  Co.  v.  Swimiey,  97  Ind. 

complaint   by    an    executor   upon    an  586. 


§    392  EXECUTORS   AND   ADMINISTRATORS'    SUITS.  637 

An  administrator  cannot  maintain  an  action  to  enforce  a  re- 
sulting trust  in  lands  in  favor  of  his  intestate's  estate  unless  it  is 
shown  that  such  lands,  when  recovered,  will  be  needed  for  the 
payment  of  the  intestate's  debts.^^ 

Before  any  executor  can  maintain  an  action  in  relation  to  his 
testator's  estate,  he  is  required  to  take  out  letters  testamentary 
and  qualify  as  such  executor.'" 

He  cannot  maintain  an  action  to  enforce  a  resulting  trust  in 
land  in  favor  of  the  estate  unless  such  land  is  shown  to  be  neces- 
sary for  the  payment  of  debts."  And  he  may  sue  for  a  royalty 
in  oil  wells   which  had   accrued   to  the   decedent  prior  to   his 

death." 

He  may  also  maintain  an  action  on  the  bond  of  a  clerk  for  the 
misapplication  of  moneys  of  the  estate  paid  to  him." 

An  action  to  set  aside  an  assignment  of  a  lease  for  fraud  may 
be  brought  by  the  administrator  of  the  assignor  and  the  venue  of 
such  action  is  the  county  where  the  defendant  resides  regardless 
of  the  location  of  the  leased  premises." 

Cases  arise  where  it  is  necessary  for  the  protection  of  the  prop- 
erty of  a  decedent  that  some  one  should  collect  and  preserve  it 
for  regvilar  administration,  and  until  some  person  has  been  regu- 
larly appointed  for  that  purpose.  Upon  the  application  of  a  cred- 
itor, or  of  any  one  interested  in  the  estate  the  court  may  appoint 
a  special  administrator  to  collect,  care  for  and  preserve  the  prop- 
erty of  the  estate  for  the  duly  appointed  administrator  or  execu- 
tor. Such  special  administrator  has  power  to  sue  for  and  recover 
property  of  the  estate,  and  has  authority  to  bring  an  action  for 

"Burns'  R.  S.  1908,  §  1247;  Brown  jury.     Langsdale  v.  Woolen,  99  Ind. 

V.  Brown,  43  Ind.  474.  575. 

"Call  V    Ewing,   1   Blackf.    (Ind.)  *^  Williams  v.  Short,  155  Pa.  St.  480, 

301  26  Atl.  662. 

*^  Matlock  V.  Nave,  28  Ind.  35.    In  a  « Henry    v.     State,    98    Ind.    381; 

suit   by   an   administrator  to   recover  Thomas  v.  Connelly,  104  N.  Car.  342, 

money  held  in  trust,  it  is  immaterial  10  S.  E.  520. 

whether  there  are  demands  against  the  "  Mark  v.  North,  155  Ind.  575,  57  N. 

estate  or  not,  and  interrogatories  upon  E.  902. 
the  subect  should  not  be  sent  to  the 


638  INDIANA    PROBATE    LAW.  §    392 

an  accounting  against  the  surviving  partner  of  a  firm  of  which  his 
decedent  was  a  member.  *° 

The  right  of  action  for  damages  to  the  real  estate  which  ac- 
crued in  the  lifetime  of  the  decedent  is  in  his  administrator  and 
not  in  the  heir.*"  In  the  absence  of  statutory  authority  actions 
for  injuries  to  the  person  abate  on  the  death  of  the  person  and  do 
not  survive  to  his  administrator.*^ 

The  heirs  at  law  cannot  maintain  an  action  for  the  conversion 
of  personal  property  owned  by  a  decedent  at  the  time  of  his  death, 
and  a  judgment  against  the  heirs  in  such  an  action  will  not  bar 
an  action  subsequently  brought  by  the  administrator  for  such 
conversion.** 

Executors  or  administrators  may  sue  for  any  amount  in  any 
court  having  probate  jurisdiction  and  a  judgment  for  any  sum 
will  carr}^  the  costs,  the  provisions  of  section  6i8,  Burns'  R.  S. 
1908,  not  applying  in  such  cases.*® 

Justices  of  the  peace  have  jurisdiction  over  suits  by  executors 
and  administrators  as  fully  as  they  have  over  those  commenced 
by  other  persons,  and  in  any  such  suit,  when  the  defendant  has 
pleaded  the  general  issue  and  special  matters  in  bar  of  the  action, 
and  a  transfer  of  such  cause  has  been  made  to  the  circuit  court, 
he  cannot  be  permitted  in  that  court  to  deny  the  character  in 
which  the  plaintiff  sues.^'^ 

But  while  executors  and  administrators  may  sue  before  jus- 
tices of  the  peace  they  cannot  be  sued  as  such  in  the  courts  of 
such  officers."^ 

A  principal  on  a  bond  had  made  fraudulent  conveyances  of  his 

*^  Bruning  v.   Golden,   159  Ind.   199,  against  the  heirs  in  such  an  action  will 

64  N.  E.  657 ;  Flagler  v.  Blunt,  32  N.  not  bar  an  action  subsequently  brought 

J.  Eq.  518;  Ante,  §§  55,  56,  57.  by  the  administrator  for  such  conver- 

"  Schee  v.  Wiseman,  79  Ind.  389.  sion. 

"'Hilliker   v.    Citizens'    &c.    R.    Co.,  "Wheeler  v.  Calvert,  25  Ind.  365; 

152  Ind.  86,  52  N.  E.  607.  Hillenburg  v.  Bennett,  88  Ind.  540. 

*'  Douglass  V.  McCarer,  80  Ind.  91.  =»  Scanland     v.     Ruble,     4     Blackf. 

The  heirs  at  law  cannot  maintain  an  (Ind.)    481;    Arnold    v.    Fleming,    14 

action  for  the  conversion  of  personal  Ind.  10. 

property  owned  by  a  decedent  at  the  "Palmer  v.  Fuller,  22  Ind.  115. 
time   of   his   death,   and   a   judgment 


§    393  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  639 

property,  and  died  insolvent  and  in  default  on  his  bond,  which 
default  the  surety  on  such  bond  was  compelled  to  pay.  It  was 
held  that  even  after  the  death  of  such  surety,  a  right  of  action 
existed  in  favor  of  his  administrator  against  the  administrator 
of  such  principal  and  the  fraudulent  grantee  to  set  aside  such 
conveyances  and  subject  the  property  to  the  reimbursement  of  the 
estate  of  the  surety. ^^ 

§  393.  Right  to  sue  on  notes,  mortgages,  etc. — An  execu- 
tor or  administrator  may  maintain  suits  for  the  collection  of 
notes  and  mortgages  payable  to  the  decedent;  and  an  executor 
may  maintain  such  suits  even  where  the  notes  and  mortgages 
have  been  specifically  bequeathed  by  his  testator.^^ 

On  a  note  payable  to  an  executor  or  administrator  as  such,  he 
may  sue  in  his  representative  capacity,  for  the  rule  is  firmly 
established  that  whenever  the  money  recovered  will  be  assets  of 
the  estate,  the  executor  or  administrator  may  sue  for  it  and  de- 
clare in  his  representative  capacity;^*  and  if  he  renounce  his 
trust,  or  die  before  the  collection  of  such  note,  the  administrator 
de  bonis  non  may  maintain  such  suit ;  and  on  a  note  so  payable  he 
may  sue  without  naming  himself  as  administrator.^^  But  if  an 
administrator  change  the  nature  of  a  debt  originally  due  to  the 
intestate,  he  must  sue  for  the  new  debt  in  his  own  name.^*^ 

"  Coffinberry  v.  McClellan,  164  Ind.  such  estate  with  full  knowledge  of  this 

131,  1Z  N.  E.  97.  fact      and      without      consideration, 

"  Crist  V.  Crist,  1  Ind.  570,  50  Am.  showed  the  plaintiff  to  not  be  the  real 

Dec.    481n;    North-Western    Confer-  party    in    interest,    and   constituted    a 

ence   v.    Myers,    36    Ind.    375;    Leach  good  defense.     Krutz  v.    Stewart,  76 

V.  Prebster,  35  Ind.  415.    An  adminis-  Ind.  9. 

trator  can  maintain  an  action  to  set  ''^  Sheets  v.  Pabody,  6  Blackf.  (Ind.) 

aside  a  chattel  mortgage  and  an  as-  120,  38  Am.  Dec.  132 ;  Krutz  v.  Stew- 

signment  of  a  certificate  of  purchase  art,  76  Ind.  9;  Ratcliff  v.  Everman,  87 

of   real   estate,   fraudulently  obtained  Ind.  446. 

from  the  intestate,  when  such  prop-  ^' Helm    v.    Van    Vleet,    1    Blackf. 

erty  is  necessary  for  payment  of  debts  (Ind.)  342,  12  Am.  Dec.  248;  Capp  v- 

of  the   estate.     Martin  v.   Bolton,  75  Gilman,  2  Blackf.    (Ind.)   45;  Barnes 

Ind.  295.     In  a  suit  on  a  promissory  v.  Modisett,  3  Blackf.  (Ind.)  253. 

note,  an  answer  that  it  belonged  to  a  ''"  Helm    v.    Van    Vleet,    1    Blackf. 

decedent's  estate,  and  that  the  plain-  (Ind.)  342,  12  Am.  Dec.  248. 
tiff  received  it  of  the  administrator  of 


640  INDIANA  PROBATE  LAW.  §  393 

The  executor  or  administrator  of  a  deceased  mortgagee  may, 
in  the  absence  or  nonresidence  of  the  heirs  or  devisees  of  such 
decedent,  maintain  ejectment  against  the  mortgagor  or  any  one 
claiming  under  him.^' 

In  an  action  upon  a  note  or  written  contract  against  the  estate 
of  a  deceased  maker,  the  execution  of  such  note  or  contract  must 
be  proved ;  and  to  compel  such  proof  it  is  not  necessary  for  the 
executor  or  administrator  of  the  estate  to  deny  such  execution  by 
a  sworn  plea — such  proof  must  be  made  without.'''* 

In  an  action  brought  by  an  executor  or  administrator  upon  a 
promissory  note  payable  to  his  decedent,  it  is  sulticient  to  aver  in 
the  complaint  that  such  note  is  due  and  unpaid,  without  any 
special  averment  that  it  had  not  been  paid  to  such  decedent  in  his 
lifetime.^" 

Under  the  old  fomis  of  practice,  a  declaration  in  an  action  by 
an  administrator  de  bonis  non  upon  a  debt  due  the  decedent  must 
state  the  name  of  the  first  administrator;  and  it  would  be  best  to 
allege  a  nonpayment  to  such  decedent,  or  the  preceding  adminis- 
trator, as  well  as  to  himself."" 

The  assignee  of  a  note  against  an  estate  must  not  only  prove 
the  execution  of  the  note,  but  also  the  execution  and  indorse- 
ments by  way  of  assignment  thereon." 

"Doe  V.  Mace,  7  Blackf.  (Ind.)  2.  his  death  the  defendants  wrongfully 

""  Riser  v.  Snoddy,  7  Ind.  442,  65  converted  to  their  own  use,  was  good, 
Am.  Dec.  740;  Mahon  v.  Sawyer,  18  whether  the  conversion  occurred  be- 
Ind.  73;  Cawoods  v.  Lee,  32  Ind.  44;  fore  the  granting  of  letters  of  admin- 
Wells  v.  Wells,  71  Ind.  509;  Burns' R.  istration  or  thereafter.  Gerard  v. 
S.  1908,  §  370.  Jones,  78  Ind.  378. 

""Cromwell  v.  Barnes,  58  Ind.  20.  "^Jennings  v.  McFadden,  80  Ind. 
Where,  in  such  an  action,  the  com-  531.  Complaint  by  an  administratrix 
plaint  shows  that  no  consideration  for  money  loaned  the  defendant  by 
was  paid  to  the  intestate,  an  averment  the  intestate,  alleging  a  promise  of 
of  repayment  is  not  necessary.  Mar-  the  defendant  after  death  of  the  in- 
tin  V.  Bolton,  75  Lnd.  295.  testate  to  pay  the  plaintiff.  Answer  of 

""  Vanblaricum    v.    Yeo,    2    Blackf.  denial.     Held,  that  evidence  was  ad- 

(Ind.)     322;     Griffith    v.    Fischli,    4  missible  on  behalf  of  the  defendant  to 

Blackf.    (Ind.)   427.     A  complaint  by  prove  that  the  money  was,   in   fact, 

an  administrator,  showing  that  his  tes-  checked  out  of  the  bank  by  the  intes- 

tator  died  the  owner  of  certain  sums  tate  to  the  defendant  and  paid  by  the 

of  money  and  property,  which  after  latter  at  request  of  the  former  to  a 


394 


EXECUTORS    AND   ADMINISTRATORS     SUITS. 


641 


The  executor  or  administrator  may  maintain  an  action  to  can- 
cel the  assignment  of  a  note  on  the  ground  that  it  was  obtained 
from  the  decedent  by  fraud.®" 

§  394.  Right  to  sue  on  covenants. — An  administrator  or 
executor  may  maintain  an  action  for  a  breach  of  covenants  in  a 
deed,  when  such  breach  occurred  in  the  hfetime  of  the  decedent®^ 
Where  the  covenant  is  broken  in  the  hfetime  of  the  covenantee, 
and  possession  is  surrendered  by  him  to  the  holder  of  the  para- 
mount title,  the  action  should  be  brought  by  his  administrator 
and  not  by  the  heir.  In  such  a  case  the  land  does  not  descend  to 
or  vest  in  the  heir,  and  therefore  no  right  of  action  for  a  breach 
of  the  covenant  is  ever  acquired  by  him.®*  In  Rawle  on  Cove- 
nants of  Title,  page  336,  it  is  said :  "With  respect  to  covenants, 
although  until  breach  they,  equally  with  the  warranty,  passed  to 
the  heirs  with  the  land  they  were  intended  to  protect,  yet  if  a 
breach  had  occurred  in  the  lifetime  of  the  testator,  they  then  be- 
came choses  in  action,  incapable  of  transmission  or  descent,  and 
whose  right  survived  to  the  executor  alone."  From  these  author- 
ities it  of  necessity  follows  that,  where  the  special  damage  is  to 


creditor    of    the    intestate.      Slade    v. 
Leonard,  75  Ind.  171. 

•'Walker  v.  Steele,  121  Ind.  436,  22 
N.  E.  142,  23  N.  E.  271;  Derrick  v. 
Emmens,  38  N.  Y.  St.  481,  14  N.  Y. 
S.  360.  Action  by  an  administra- 
tor on  a  note  made  to  his  intestate  by 
the  defendant.  Answer,  that  it  was 
executed  by  defendant  to  his  father, 
the  intestate,  for  the  purchase  of  his 
real  estate,  with  an  agreement  that 
only  the  interest  and  such  portion  of 
the  principal  as  should  become  neces- 
sary should  be  paid  to  defendant's 
father  and  mother  during  their  lives, 
and  that  after  the  death  of  both,  de- 
fendant should  pay  the  note  to  his  sis- 
ters or  their  children,  and  that  his 
mother  was  still  living  and  entitled  to 
receive   the   interest.     Held,   that   the 


note,  absolute  and  unconditional  on  its 
face,  could  not  be  varied  or  contra- 
dicted by  proof  of  such  contempora- 
neous verbal  agreement.  Held,  that 
the  note  did  not  constitute  an  exe- 
cuted gift  to  the  intestate's  daughters, 
but,  having  remained  in  the  hands  of 
the  intestate  till  his  death,  it  went  to 
his  administrator.  Held,  that  the  aver- 
ment that  the  widow  had  a  right  to 
the  possession,  was  not  an  averment 
of  fact  which  a  demurrer  admitted, 
but  was  simply  an  incorrect  statement 
of  a  legal  conclusion.  Foglesong  v. 
Wickard,  75  Ind.  258. 

®  Burnham  v.  Lasselle,  35  Ind.  425. 

"*  Wilson  V.  Peelle,  78  Ind.  384; 
Frink  v.  Bellis,  32  Ind.  135,  5  Am. 
Rep.  193. 


41 — Pro.  L.\w. 


642  INDIANA    PROBATE    LAW.  §    395 

the  testator  or  intestate  in  his  lifetime,  the  executor  or  adminis- 
trator must  sue.^^ 

This  is  in  effect  the  rule  of  the  common  law  by  which  the  right 
to  sue  on  a  covenant  real  descends  to  the  heirs  of  the  covenantee, 
or  goes  to  his  assigns,  to  the  exclusion  of  his  executor  or  admin- 
istrator, yet  if  such  covenant  had  been  broken  during  the  life- 
time of  the  covenantee  his  executor  or  administrator  might  sue 
upon  it ;  but  though  there  may  have  been  a  formal  breach  during 
the  covenantee's  life,  yet,  if  no  substantial  damage  followed  until 
after  his  death,  the  heir  and  not  the  administrator  has  the  right 
to  sue.'® 

This  is  the  rule  as  to  covenants  which  run  with  the  land,  but 
as  to  personal  covenants  not  running  with  the  land,  such  as  the 
covenant  of  seisin,  for  right  to  convey,  and  against  incumbrances, 
there  is  this  distinction,  that  if  these  latter  covenants  are  not  true 
there  is  a  breach  as  soon  as  made,  which  constitutes  a  chose  in 
action  descending  to  the  executor  or  administrator.®^ 

§  395.  Evidence  of  power  to  sue — Pleadings — Copy  of  let- 
ters, etc. — In  any  suit  contemplated  in  the  foregoing  sections 
it  shall  not  be  necessary  for  such  executor  or  administrator  to 
make  profert  of  his  letters,  nor  shall  his  right  to  sue  as  such 
executor  or  administrator  be  questioned,  unless  the  opposite  party 
shall  file  a  plea  denying  such  right,  with  his  affidavit  to  the  truth 
thereof  thereunto  attached,  in  which  case  a  copy  of  the  letters 
issued  to  such  executor  or  administrator,  duly  authenticated,  shall 
be  all  the  evidence  necessary  to  establish  such  right.®* 

Where  the  debt  is  payable  to  an  executor  or  administrator  as 

**  Frink  v.  Bellis,  33  Ind.  135,  5  Am.  v.  Vanmeter,  7  Ind.  App.  45,  33  X.  E. 

Rep.  193 ;  Martin  v.  Baker,  5  Blackf .  666.    A  plaintiff's  legal  capacity-  to  sue 

(Ind.)  232.  as    administrator    can    be    questioned 

"Com.   Dig.   Title  Covenant  B.   1;  only  bj'  a  sworn  answer.     His  com- 

Williams'  Extrs.,  803;  Woerner  Am.  plaint  need  not  make  profert  of  his 

Law  Admin.,  §  291;  Rawle  on  Cove-  letters.     Hansford   v.  VanAuken,   79 

nants,  §  316  (5th  ed.).  Ind.  157;  Hansford  v.  VanAuken,  79 

"4  Kent.   Com.  472;  Rawle  Cove-  Ind.  302;  Bennett  v.  Gaddis,  79  Ind. 

nants,  §  316.  347;    Stephenson  v.   Martin,   84   Ind. 

«*  Burns'  R.  S.  1908,  §  2810.    Barnett  160;  Higgins  v.  State,  87  Ind.  282. 


§    395  EXECUTORS    AXD   ADMINISTRATORS'    SUITS.  643 

such,  he  may  sue  for  its  recovery  in  his  own  name  and  right,  and 
no  profert  of  his  letters  is  necessary;  nor  is  profert  of  his  letters 
necessary  in  an  action  on  a  judgment  obtained  by  him  in  his  rep- 
resentative character.  It  is  not  necessary  in  either  instance  that 
he  name  himself  as  executor  or  administrator.  The  reason  for 
this  is  that  the  judgment  is  considered  as  a  debt  due  to  him  in  his 
personal  capacity,  and  he  may  declare  that  it  is  due  to  himself.*'^ 

The  law  is  well  settled  that  if  an  executor  or  administrator  sue 
on  a  cause  of  action  arising  in  the  lifetime  of  the  testator  or  in- 
testate, and  the  defendants  plead  the  general  issue  or  any  other 
plea  in  bar  of  the  action,  the  representative  character  of  the 
plaintiff  is  admitted  by  such  plea.'^'*  The  old  plea  of  ne  unques 
administrator,  where  the  cause  of  action  accrued  in  the  lifetime 
of  the  intestate,  was  held  to  be  a  plea  in  abatement,  calling  in 
question  the  representative  character  of  the  plaintiff.'^ 

Letters  testamentary  and  of  administration  and  of  adminis- 
tration with  the  will  annexed,  or  de  bonis  non,  attested  by  the 
clerk,  and  under  the  seal  of  the  court  issuing  them,  shall  be  con- 
sidered evidence  of  the  authority  of  the  person  to  whom  they  are 
granted,  until  superseded  or  revoked,  and  shall  extend  to  all  the 
estate,  personal  and  real,  of  the  decedent  within  the  state.  The 
record  of  such  letters,  and  duly  certified  transcripts  thereof,  may 
be  given  in  evidence  with  like  effect  as  the  originals. '- 

Where  an  action  is  brought  by  an  executor  or  administrator  as 
such,  his  right  to  sue  in  that  character  can  only  be  questioned  by 
a  plea  in  abatement  supported  by  affidavit.  Such  question  cannot 
be  raised  by  demurrer  to  the  complaint.'^     A  certified  copy  of 

'"Savage     v.     Meriam,     1     Blackf.  "^  Codding  v.  Whittaker,  5   Blackf. 

(Ind.)  176;  Capp  v.  Gilman,  2  Blackf.  (Ind.)  470;  Weathers  v.  Xewman,  1 

(Ind.)    45;    Helm    v.    Van    Vleet,    1  Blackf.  (Ind.)  232. 

Blackf.  (Ind.)  342,  12  Am.  Dec.  248;  "  Burns' R.  S.  1908.  §  2758. 

Campbell  v.  Baldwin,  6  Blackf.  (Ind.)  "  Nolte  v.  Libbert,  34  Ind.  163;  Hig- 

364.  gins  V.  State,  87  Ind.  282;  Kelley  v. 

'"Pollard     V.     Buttery,     3     Blackf.  Love,  35  Ind.  106;  Langsdale  v.  Gir- 

(Ind.)   239;  Weathers  v.  Newman,  1  ton,  51  Ind.  99;  Hansford  v.  Van  Au- 

Blackf.  (Ind.)  232.  ken,  79  Ind.  157. 


644  INDIANA  PROBATE  LAW.  §  395 

letters  testamentary  or  of  administration  may  be  introduced  in 
evidence  as  original.^* 

If,  from  the  complaint,  there  is  uncertainty  as  to  the  character 
in  which  an  executor  or  administrator  sues,  the  remedy  is  by 
motion  to  make  the  complaint  more  specific  and  not  by  de- 
murrer."'^ 

A  complaint  by  an  executor  or  administrator  need  not  show  his 
appointment  as  such  executor  or  administrator,  nor  need  it  allege 
the  death  of  the  decedent.  In  such  an  action  the  law  will  pre- 
sume that  a  man  is  dead  from  the  fact  that  letters  testamentary 
or  of  administration  have  been  granted  upon  his  estate  by  the 
proper  tribunal.  If  it  appear  from  the  complaint  that  such 
executor  or  administrator  sues  in  his  representative  capacity,  such 
complaint  will  be  sufficient,  and  profert  of  his  letters  need  not  be 
made.  The  capacity  in  which  he  sues  can  only  be  questioned  by 
plea  supported  by  affidavit.'*'  Perhaps,  in  a  direct  proceeding, 
where  the  death  of  a  person  is  an  essential  fact  necessary  to  be 
proved,  a  presumption  of  such  death  will  not  arise. ^' 

Where  an  executor  or  administrator  sues  the  court  will  pre- 
sume that  he  has  been  duly  and  legally  appointed,  and  his  right 
to  sue  cannot  be  questioned,  except  by  special  answer  under 
oath,^^  and  the  same  rule  applies  in  a  suit  by  an  administrator  de 
bonis  non.'^  In  an  action  by  an  administrator  on  a  note  payable 
to  his  decedent  the  complaint,  which  in  the  title  and  in  the  body 
thereof,  designated  the  plaintiff  as  administrator  of  the  decedent, 
was  held  sufficient,  though  it  contained  no  allegation  of  the  death 

"  Bales  V.  Binford,  6  Blackf.  (Ind.)  ™  Kelley  v.  Love,  35  Ind.  106;Wyant 

415.  V.  Wyant,  38  Ind.  48 ;  Xolte  v.  Libbert, 

"  Ohio  &c.  R.  Co.  V.  McClure,  47  34  Ind.  163 ;  Jenkins  v.  Peckinpaugh, 
Ind.  317;  English  v.  Roche,  6  Ind.  62.  40  Ind.  133;  Jeflfersonville  R.  Co.  v. 
The  circuit  court  may  order  the  dis-  Swayne,  26  Ind.  477;  Bennett  v.  Gad- 
missal  of  a  suit  brought  in  the  su-  dis,  79  Ind.  347. 

perior  court  by  an  administrator  for  "  Buntin  v.   Doe,   1   Blackf.    (Ind.) 

his   own  benefit,   and   such   an  order  26. 

will  not  be  an  interference  with  the  "  McDowell  v.  North,  24  Ind.  App. 

jurisdiction    of    the    superior    court.  435,  55  N.  E.  789. 

Rauh  V.  Weis,  133  Ind.  264,  32  N.  E.  '*  Michigan  Trust  Co.  v.  Probasco, 

880.  29  Ind.  App.  109,  63  N.  E.  255. 


§    395  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  645 

of  the  decedent  or  the  issuance  of  letters  upon  his  estate.^"  A 
demurrer  will  properly  raise  the  question  as  to  the  character  or 
capacity  in  which  an  administrator  sues  when  such  capacity  does 
not  appear  from  the  face  of  the  complaint,  but  if  the  representa- 
tive character  of  the  plaintiff  is  apparent  upon  a  liberal  construc- 
tion of  the  complaint  his  right  to  sue  can  only  be  questioned  by  a 
plea  under  oath/^ 

Before  the  adoption  of  what  is  now  section  2810,  Burns'  R.  S. 
1908,  whenever  it  was  necessary  for  a  plaintiff  to  sue  as  executor 
or  administrator,  an  omission  to  show  his  authority  to  so  sue  was 
fatal  on  special  demurrer ;  but  when  he  could  sustain  such  action 
in  his  own  right,  the  omission  was  considered  immaterial,  al- 
though he  might  have  described  himself  as  executor  or  admin- 
istrator.^^ 

A  complaint  by  an  executor  or  administrator  against  one  for  a 
wrongful  conversion  of  a  decedent's  personal  property,  which 
alleges  such  wrongful  conversion,  is  good  whether  the  conver- 
sion occurred  before  or  after  the  granting  of  letters  testamentary 
or  of  administration  upon  the  estate  of  such  decedent.^^ 

An  administrator  sued  as  such,  whose  letters  are  revoked  pend- 
ing the  suit,  may  plead  such  revocation  in  bar  of  the  action;  for 
if  a  person  so  sued  be  not  such  administrator,  it  is  a  good  bar  to 
the  action.** 

An  administrator  sued  as  such  on  a  claim  against  his  dece- 
dent's estate  cannot  set  up  an  estoppel  to  protect  his  title  to  real 
estate  purchased  by  him  individually  from  the  heirs  of  such  de- 
cedent.*^ 

A  plea  in  abatement  for  the  reason  that  the  executor  or  admin- 
istrator has  filed  no  bond  is  good.*^ 

Where  it  is  uncertain  from  the  complaint  in  what  capacity  an 

*"  Toner  v.  Wagner,  158  Ind.  447,  63        ^  Gerard  v.  Jones,  78  Ind.  378. 
N.  E.  859.  ^  Morrison     v.     Cones,     7     Blackf. 

**  Toner  v.  Wagner,  158  Ind.  447,  63  (Ind.)  593;  2  Phillips'  Evidence,  363. 
N.  E.  859.  ^  Lee  v.  Carter,  52  Ind.  342. 

''Campbell   v.    Baldwin,    6    Blackf.        ^  Call   v.  Ewing,   1   Blackf.    (Ind.) 

(Ind.)  364.  301. 


646  INDIANA    PROBATE   LAW.  §    396 

executor  or  administrator  sues,  the  remedy  is  b}'  motion  to  make 
more  specific  and  not  by  demurrer."*^ 

The  action  must  be  brought  in  the  name  of  the  executor  or  ad- 
ministrator of  the  decedent  as  his  personal  representative  and  not 
in  the  name  of  his  estate.  'The  estate  of  a  dead  man  cannot  be 
a  party  to  a  suit  without  some  representative ;  and  the  suit  should 
be  carried  on  in  the  name  of  the  representative  as  such."^** 

§  396.  Survival  of  actions. — If,  at  the  time  any  executor  or 
administrator  shall  die,  resign  or  be  removed,  any  suit  or  pro- 
ceeding be  pending  in  any  court  in  which  his  name,  in  his  fidu- 
ciary capacity,  is  used,  such  suit  or  proceeding  shall  not  abate  or 
be  discontinued,  but  the  same  shall  be  prosecuted  or  defended  by 
the  remaining  executor  or  administrator,  if  there  be  one,  or  by 
his  successor,  the  name  of  such  survivor  or  successor  being  sub- 
stituted in  such  suit  or  proceeding  instead  of  that  of  the  executor 
or  administrator  whose  authority  has  ceased ;  nor  shall  such  suit 
or  proceeding  be  continued  to  another  term  on  account  of  such 
death,  unless  at  the  option  of  such  survivor  or  successor.*" 

A  defendant  dying  during  the  pendency  of  an  action,  such  ac- 
tion does  not  abate,  but  may  be  continued  against  the  personal 
representatives  of  such  deceased  defendant,  and  the  cause  may  be 
prosecuted  to  final  judgment  against  the  executor  or  adminis- 
trator of  such  defendant,  provided  such  cause  be  one  which  sur- 
vives.*"^ 

Where  an  executor  or  administrator  who  has  begun  an  action 
dies  or  resigns,  and  his  successor  is  appointed  pending  the  action, 
it  is  immaterial  whether  the  name  of  the  successor  appears  as  a 
party  to  the  record,  although  he  has  appeared  and  prosecuted  such 

""Ohio  &c.  Co.  V.  McClure,  47  Ind.  App.   119,  70  X.   E.   1008;   Dallam  v. 

317.  Estate  of  Stockwell,  33  Ind.  App.  620, 

^  Wells  V.  Wells,  71  Ind.  509;  Mc-  71  N.  E.  911. 

Conahey's   Estate   v.   Foster,   21    Ind.  *' Burns' R.  S.  1908,  §  2811. 

App.  416,  52  N.  E.  619;  Dunn  v.  Es-  ""Burns'  R.  S.  1908,  §  272.    Lawson 

tate  of  Evans,  28  Ind.  App.  447,  63  N.  v.  Newcomb,  12  Ind.  439;  Holland  v. 

E.  36;  Whisler  v.  Whisler,   162  Ind.  Holland,  131  Ind.  196,  30  N.  E.  1075; 

136,  67  N.  E.  984,  70  N.  E.  152;  Estate  Clodfelter  v.  Hulett,  92  Ind.  426. 
of   Guernsey   v.    Pennington,   33   Ind. 


§    39*5  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  647 

action  to  a  conclusion.^'  If  a  defendant  die  after  an  action  is 
brought  the  suit  does  not  abate,  but  his  personal  representative 
may,  by  an  amendment  of  the  pleading,  or  the  filing  of  a  supple- 
mental complaint  be  substituted  in  his  stead  and  process  is  issued 
accordingly.  A  suit  cannot  be  continued  in  the  name  of  one  who 
is  dead.^" 

In  all  cases  where  actions  survive,  they  may  be  commenced  by 
or  against  the  representatives  of  the  deceased  to  whom  the  in- 
terest in  the  subject-matter  of  the  action  has  passed.^^ 

A  cause  of  action  arising  out  of  an  injury  to  the  person  dies 
with  the  person  of  either  party,  except  in  such  cases  in  which  an 
action  is  given  for  an  injury  causing  the  death  of  any  person,  and 
actions  for  seduction,  false  imprisonment  and  malicious  prosecu- 
tion."' 

All  other  causes  of  action  survive,  and  may  be  brought  by  or 
against  the  representatives  of  the  deceased  party,  except  actions 
for  promises  to  marry. "^ 

If  the  action  is  for  injury  to  property  to  which  the  personal 
injury  is  merely  an  incident  the  action  will  survive;  but  where 
the  cause  of  action  is  for  an  injury  to  the  person,  and  the  injury 
to  property  is  merely  incidental  it  does  not  survive.®*' 

Where,  in  a  cause  of  action  which  survives,  the  heirs  are  sub- 
stituted as  defendants  upon  the  death  of  their  ancestor,  they 
stand  in  precisely  the  same  relation  to  the  plaintiff  that  the  orig- 
inal defendants  did."  An  action  which  does  not  survive  dies 
with  the  plaintiff;  and  the  administrator  in  such  case  cannot  be 
substituted.^* 

In  case  of  the  death  of  a  defendant  in  an  action  which  will 

"Elmore  v.  McCrary,  80  Ind.  544.  *=  City  of  Seymour  v.  Cummins,  119 

"=  Holland  v.  Holland,  131  Ind.  196,  Ind.  148,  21  X.  E.  549,  5  L.  R.  A.  126n; 

30  X.  E.   1075;  Taylor  v.  Elliott,  52  Jenkins  v.  French,  58  X.  H.  532;  Wolf 

Ind.  588.  V.  Wall,  40  Ohio  St.  111. 

"Burns'  R.  S.  1908,  §  282.     Sebrell  '^  Champ  v.  Kendrick,  130  Ind.  549, 

V.  Couch,  55  Ind.  122.  30  X\  E.  787. 

■"  Burns'  R.  S.  1908.  §  283.     Gimbel  ''  Stout  v.  Indianapolis  &c.  R.  Co.  41 

V.  Smidth.  7  Ind.  627;  Stout  v.  Indi-  Ind.   149:   Indianapolis  &c.  R.   Co.  v. 

anapolis  &c.  R.  Co.,  41  Ind.  149.  Stout,  53  Ind.  143. 

"  Burns'  R.  S.  1908,  §  284. 


648  INDIANA    PROBATE    LAW.  §    396 

survive,  the  personal  representative  of  such  defendant  must  be 
substituted  as  a  party  to  the  action.  Such  substitution  is,  how- 
ever, to  a  certain  extent,  a  new  cause  of  action,  and  requires  an 
amendment  of  the  original  complaint,  or  better  yet,  the  filing  of 
a  supplemental  complaint  against  the  new  party.  Process  must, 
in  such  case,  be  served  against  such  personal  representative,  un- 
less he  voluntarily  appears,  but  his  appearance  does  not  avoid  the 
necessity  of  new  pleadings."" 

And  one  administrator  or  executor  may  be  substituted  for  an- 
other.^ 

The  right  of  action  upon  a  joint  contract  passes,  on  the  death 
of  an  obligee,  to  the  survivor,  and  the  heirs  and  personal  repre- 
sentatives of  the  deceased  obligee  are  not  necessary  parties.^ 

The  estate  of  a  decedent  is  liable  for  a  false  and  fraudulent 
return  of  a  tax-list  made  by  him,  and  an  action  can  be  maintained 
against  his  personal  representative.^ 

The  rule  is  that  statutory  actions  for  torts  abate  according  to 
the  rules  of  common  law,  the  same  as  common  law  actions,  unless 
they  are,  by  statute,  expressly  saved.* 

An  action  brought  by  a  father  for  the  death  of  his  child  is 
saved  by  statute  from  abatement,  and  wnll,  upon  the  death  of  the 
father,  survive  to  his  executor  or  administrator.^ 

*°  Holland  v.  Holland,  131  Ind.  196,  name  of  the  administrator  de  bonis 

30  N.  E.   1075;   Watson  v.   State,  21  non  was  substituted  as  plaintiff,  objec- 

Ind.   109;   Wood  v.   Ostram,  29  Ind.  tions  to  the  manner  of  his  appoint- 

177;    Evans   v.    Nealis,   69   Ind.    148;  ment  would  not  be  noticed  in  the  ap- 

Shirk  V.  Coyle,  2  Ind.  App.  354,  27  N.  pcllate    court    where    they    were    not 

E.  638 ;  Clodfelter  v.  Hulett,  92  Ind.  properly  brought  to  the  attention  of 

426.      It  is  said,  "evidently  the  same  the  lower  court. 

latitude  is  allowed  courts  in  permit-  *  Indiana   &c.   R.    Co.   v.   Adamson, 

ting    amendments    in    causes    revived  114   Ind.  282,    15   N.   E.  5;    Pomeroy 

against  personal  representatives,  as  is  Rem.,  §  226;  Dicey  Parties  to  Actions, 

allowed   in    ordinary   actions,    having  149. 

due  regard  for  the  rights  of  the  re-  ^  Davis  v.  State,  119  Ind.  555,  22  N. 

spective   parties   and  the  speedy   and  E.  9. 

effective  administration  of  justice."  *  Little  v.  Conant,  2  Pick.   (Mass.) 

'Mahon  v.  Mahon,  19  Ind.  324.     In  527;  Hooper  v.  Gorham,  45  Me.  209; 

this  case  it  was  held  that  where  an  ac-  Pennsylvania  Co.  v.  Davis,  4  Ind.  App. 

tion  was  begun  in  the  name  of  an  ad-  51,  29  N.  E.  425. 

ministrator,   and  before  the   determi-  °  Pennsylvania  Co.  v.  Davis,  4  Ind. 

nation  of   the   suit   he   dies,   and   the  App.  51,  29  N.  E.  425. 


§    396  EXECUTORS    AND    ADMINISTRATORS'    SUITS.  649 

In  actions  for  bastardy,  brought  by  the  mother  of  a  bastard 
child  against  the  reputed  father  of  such  child,  the  right  of  action 
survives  the  death  of  such  father.  The  statute  reads :  "In  case 
of  the  death  of  the  putative  father  of  such  child,  either  before  or 
after  the  commencement  of  prosecution,  and  after  the  prelim- 
inary examination  before  the  justice,  the  right  of  action  shall 
survive,  and  may  be  prosecuted  against  the  personal  representa- 
tives of  the  deceased  with  like  effect  as  if  such  father  were  living, 
except  that  no  arrest  of  such  personal  representative  shall  take 
place  or  bond  be  required.''  In  such  an  action  the  mother  of  the 
child  is  a  competent  witness."^ 

In  construing  the  statute,  the  court  says :  "The  provision  for 
the  survivor  of  the  right  of  action  is  not  as  lucidly  expressed  as 
it  might  be.  But  we  think  the  intention  of  the  legislature  was 
that  the  right  of  action  should  survive  generally.  It  may  be  read 
to  that  effect  in  various  ways.  'And'  sometimes  means  'or,'  and 
vice  versa.  Or  supplying  the  ellipsis,  it  might  read,  'and  either 
before  or  after  the  preliminary  examination,'  etc.  Thus  is  every 
clause  made  effective,  and  the  whole  section  stands,  with  no  great 
violence  to  the  language."® 

As  to  actions  for  personal  injuries  which  ordinarily  do  not 
survive,  we  have  a  statute  which  provides,  that  whoever  has  a 
claim  for  personal  injuries  and  obtains  judgment  for  the  same 
against  any  person,  company  or  corporation  in  any  trial  court  of 
this  state,  and  from  which  judgment  any  person,  company  or  cor- 
poration, against  whom  or  which  the  same  was  obtained,  shall 
appeal  to  the  Supreme  or  Appellate  Court  of  this  state,  and  such 
judgment  be  reversed  by  such  Supreme  or  Appellate  Court,  and 
a  new  trial  be  granted  to  appellant  thereon;  and  if  the  person 
who  obtained  such  judgment  should  die,  pending  such  appeal,  or 
before  a  new  trial  after  such  reversal  can  be  had,  such  claim  for 
personal  injuries  shall  survive  and  may  be  prosecuted  by  the  per- 
sonal representatives  of  such  decedent,  as  other  claims  are  prose- 
cuted for  and  on  behalf  of  decedents'  estates.^ 

» Burns'  R.  S.  1908,  §  1034;  State  v.        '  State  v.  Williams,  8  Ind.  191. 
Williams,  8  Ind.  191.  '  Burns'  R.  S.  1908,  §  286. 

'  State  V.  Han,  23  Ind.  539. 


650  INDIANA  PROBATE  LAW.  §  397 

The  words  "pending  such  appeal''  in  this  statute  refer  to  the 
time  of  the  announcement  by  the  defeated  party  of  his  intention 
to  appeal.  "Otherwise,"  as  the  court  says,  "if  the  plaintiff  dies 
after  the  judgment  and  before  the  transcript  is  filed  his  cause  of 
action  dies  with  him,  notwithstanding  this  section  of  the  statute 
which  obviously  intended  to  provide  against  such  contingency."'" 

§  397.  Limitation  of  actions. — If  any  person  entitled  to 
bring  or  liable  to  any  action  shall  die  before  the  expiration  of  the 
time  limited  for  the  action,  the  cause  of  action  shall  survive  to  or 
against  his  representatives,  and  may  be  brought  at  any  time  after 
the  expiration  of  the  time  limited,  within  eighteen  months  after 
the  death  of  such  person." 

Actions  for  the  recoverv-  of  real  property  sold  by  executors, 
administrators,  guardians  or  commissioners  of  a  court  upon  a 
judgment  specially  directing  the  sale  of  property  sought  to  be 
recovered,  brought  by  a  party  to  the  judgment,  his  heirs  or  any 
person  claiming  a  title  under  a  party  acquired  after  the  date  of 
the  judgment,  shall  be  brought  within  five  years  after  the  sale  is 
confirmed. '- 

Neither  a  joint  debtor,  nor  his  representatives,  in  whose  favor 
the  statute  of  limitations  has  operated,  shall  be  liable  to  a  joint 
debtor  or  surety,  or  their  representatives,  upon  payment  by  such 
joint  debtor  or  surety,  or  their  representatives,  of  the  debt,  or  any 
part  of  it."  The  acknowledgment  or  promise  of  one  joint  execu- 
tor or  administrator  shall  not  make  any  other  executor  or  admin- 
istrator liable." 

Suits  to  recover  land  sold  at  an  executor's  or  administrator's 
sale  must  be  brought  within  five  years,  and  the  statute  of  limita- 
tions begins  to  run  from  the  time  of  the  sale,  even  though  the 
sale  be  absolutely  void.  The  statute  is  for  the  protection  of  bad 
titles,  not  good  ones.'^ 

'"  Western  Union  Tel.  Co.  v.  Adams,        "  Burns'  R.  S.  1908,  §  308. 

28  Ind.  App.  420,  6Z  N.  E.  125.  "  Burns'  R.  S.  1908,  §  304. 

"  Burns'  R.  S.  1908,  §  300.  ^=  Irey  v.  Marker,  132  Ind.  546,  32 

"Burns'    R.    S.    1908,    §    295,    4th     X.  E.  309;  Davidson  v.  Bates,  111  Ind. 

Clause.  391,  12  N.  E.  687;  Fisher  v.  Bush,  133 

Ind.  315,  32  X.  E.  924;   Second  Xat. 


398  EXECUTORS   AND   ADMINISTRATORS'    SUITS.  65 1 


Persons  under  legal  disabilities  are  not  excepted  from  the  run- 
ning of  the  statute  of  limitations;  but  if  a  person  is  under  such 
disability  when  the  cause  of  action  accrues,  he  will  have  two 
years  after  the  removal  of  the  disability  in  which  to  sue/^  One 
disability  cannot  be  tacked  on  to  another  so  as  to  extend  the  time 
within  which  suit  may  be  brought/'  And  the  burden  of  estab- 
lishing a  disability  is  upon  the  person  asserting  it. 

The  presumption  is  against  disability  and  where  relied  on  it 
must  be  pleaded. ^^ 

While  it  is  the  rule  that  one  disability  cannot  be  tacked  on  to 
another,  that  is  not  the  effect  of  the  first  section  above.  This 
statute  extends  the  period  of  limitation  for  a  time  equal  to  the 
difference  between  eighteen  months  and  the  residue  of  the  limita- 
tion unexpired  at  the  death  of  the  party. '^  In  this  way  the  death 
of  a  party  may  extend  the  time  for  bringing  suit  but  it  cannot 
shorten  it.-*^  And  this  section  of  the  statute  applies  both  to  suits 
by  and  suits  against  administrators  and  executors.-^ 

An  executor  or  administrator  need  not  plead  the  statute  of  lim- 
itations in  order  to  obtain  the  benefit  of  it." 

§  398.  Joinder  of  causes — Right  of  third  person  to  sue. — 
An  executor  may  join  a  paragraph  for  trespass  quare  clausum 
f regit,  occurring  during  the  testator's  lifetime,  with  another  for 
a  like  trespass  occurring  after  the  testator's  death,  where  such 
lands  have  been  devised  to  the  executor  in  trust  for  certain  speci- 
fied purposes.-"    But  as  the  lands  immediately  on  the  death  of  the 

Bank  v.  Corey,  94  Ind.  457;  Vancleave  Walker  v.  Hill,  111  Ind.  223,  12  N.  E. 

V.  Milliken,  13  Ind.  105.  387. 

"Burns'  R.  S.  1908,  §  298;  Lehman  ^Palmer  v.   Wright,   58   Ind.   486; 

V.   Scott,   113  Ind.  Id,  14  N.  E.  914;  Briscoe  v.  Johnson,  73  Ind.  573. 

Bauman  v.  Grubbs,  26  Ind.  419 ;  Bar-  "  Harris  v.  Rice,  66  Ind.  267. 

nett  V.   Harshbarger,   105  Ind.  410,  5  -"  Emerick  v.  Chesrown,  90  Ind.  47 ; 

N.  E.  718;  Davidson  v.  Bates,  111  Ind.  AlcXear  v.  Roberson,  12  Ind.  App.  87, 

391,   12  N.  E.  687;   Royse  v.   Turn-  39  N.  E.  896. 

baugh,  117  Ind.  539,  20  X.  E.  485.  ==^Roeder  v.  Keller,  135  Ind.  692,  35 

'■  White   V.   Clawson,   79  Ind.    188 ;  N.  E.  1014. 

Knippinberg  v.   Morris,  80  Ind.  540 ;  "  Zeller  v.  Griffith,  89  Ind.  80. 

Sims  V.  Gay,  109  Ind.  501,  9  N.  E.  120 ;  ^  Pittsburgh  &c.  R.  Co.  v.  Swinney, 

97  Ind.  586. 


652  INDIANA    PROBATE    LAW.  §    398 

decedent  pass  to  the  heirs  or  devisees,  this  doctrine  can  have  no 
general  appHcation. 

If  both  will  be  assets  in  his  hands,  he  may  join  a  paragraph  for 
a  conversion  of  his  decedent's  property,  before  the  death  of  the 
decedent,  with  one  for  damages  accruing  to  such  property  after 
his  death. -^  And  an  executor  or  administrator  may  join  a  para- 
graph which  counts  on  a  promise  made  to  his  decedent,  with  one 
counting  on  a  promise  made  to  himself,  in  his  representative  ca- 
pacity. ^^ 

But  he  will  not  be  permitted  to  join  a  cause  of  action  vested  in 
him  in  his  representative  capacity,  with  a  cause  which  has  accrued 
to  himself  personally.-*' 

A  cause  of  action  which  has  accrued  to  an  executor  or  admin- 
istrator on  a  judgment  recovered  by  him  in  his  representative 
character,  may  be  joined  with  an  action  on  a  note  due  the  de- 
cedent." 

That  in  all  cases  where  any  person  interested  in  an  estate  files 
a  petition  to  the  court  alleging  that  the  administrator  or  executor 
or  any  other  person  named  in  said  petition,  claims  in  his  own 
right  any  personal  property,  note  or  chose  in  action,  or  said  ad- 
ministrator or  executor  acquiesces  in  the  claim  of  any  person 
thereto,  which  personal  property,  note  or  chose  in  action  is  al- 
leged to  be  the  property  of  the  estate  and  that  it  was  the  property 
of  the  decedent  in  his  lifetime,  such  petitioner  shall  be  allowed  to 
make  proof  of  his  allegations  and  summons  shall  issue,  and  issues 
shall  be  joined  and  trial  had  as  in  ordinary  civil  cases,  but  such 
petition  shall  be-  accompanied  by  a  bond  for  costs  with  sufficient 
surety,  to  be  approved  by  the  clerk,  if  filed  in  vacation,  or  by  the 
court,  if  filed  during  term  time,  conditioned  for  the  payment  of 
all  costs  which  may  be  adjudged  against  the  petitioner.-* 

^  French  v.   Merrill,  6  N.   H;  465 ;  =«  Bogle  v.  Kreitzer,  46  Pa.  St.  465 ; 

Epes  V.  Dudley,  5  Rand.  (Va.)  437.  Bulkley  v.  Andrews,  39  Conn.  523. 

''Lowev.  Bowman,  5  Blackf.  (Ind.)  ^Crawford  v.  Witten,  1  Lofift  154; 

410;     Sheets    v.    Pabody,    6    Blackf.  Robbins  v.   Gillett,  2  Chand.    (Wis.) 

(Ind.)   120,  38  Am.  Dec.  132;  Cowell  96. 

V.  Watts,  6  East  405 ;  Patterson  v.  Pat-  -^  Burns'  R.  S.  1908,  §  2809. 
terson,  59  N.  Y.  574,  17  Am.  Rep.  384; 
Brown  v.  Lewis,  9  R.  I.  497. 


399 


EXECUTORS    AND   ADMINISTRATORS'    SUITS.  653 


§  399.  Actions  for  injuries  resulting  in  death. — Where  one 
was  injured  by  the  wrongful  act  of  another  so  that  death  resulted 
from  such  injury  there  was  no  remedy  by  the  common  law,  but 
such  actions  are  now  generally  authorized  by  statute.  The  stat- 
ute in  this  state  provides  that  when  the  death  of  one  is  caused  by 
the  wrongful  act  or  omission  of  another,  the  personal  representa- 
tives of  the  former  may  maintain  an  action  therefor  against  the 
latter,  if  the  former  might  have  maintained  an  action,  had  he  or 
she  (as  the  case  may  be)  lived,  against  the  latter  for  an  injury 
for  the  same  act  or  omission.  The  action  shall  be  commenced 
within  two  years.  The  damages  cannot  exceed  ten  thousand 
dollars ;  and  must  inure  to  the  exclusive  benefit  of  the  widow,  or 
widower  (as  the  case  may  be),  and  children,  if  any,  or  next  of 
kin,  to  be  distributed  in  the  same  manner  as  personal  property  of 
the  deceased.^® 

It  is  a  familiar  and  long  established  maxim  of  the  common 
law  that  a  cause  of  action  for  an  injury  to  the  person  dies  with 
the  party  injured,  and  does  not  survive  to  his  personal  representa- 
tives. The  effect  of  this  statute  is  to  create  an  entirely  new  cause 
of  action  unknown  to  the  common  law ;  an  action  given  for  the 
exclusive  benefit  of  the  widow  and  children  of  the  deceased,  or 
his  next  of  kin.  It  is  not  a  revival  of  the  cause  of  action  for  the 
injury  of  a  deceased  person  in  favor  of  his  personal  representa- 
tives.   The  remedy  provided  is  a  new  and  purely  statutory  one.^" 

»  Burns'  R.  S.  1908,  §  285.  Co.  v.  Branyan,  10  Ind.  App.  570,  11 

^  The  action  for  damages  for  death,  N.  E.  190.     A  complaint  by  an  admin- 

under  this  section,  is  wholly  statutory,  istrator  against  a  railroad  company  to 

and  cannot  be  joined  with  one  for  an-  recover  damages  for  the  death  of  his 

other  cause.     Cincinnati  &c.  R.  Co.  v.  intestate,  must,  to  show  a  cause  of  ac- 

Chester,  57  Ind.  297;  Pittsburg  &c.  R.  tion,  allege  that  the  latter  left  surviv- 

Co.  V.  Vining,  27   Ind.  513,  92  Am.  ing  him  either  a  widow  or  children, 

Dec.  269;  Jeffersonville  &c.  R.  Co.  v.  or  next  of  kin.    In  the  absence  from 

Swayne,  26  Ind.  477 ;  Sherlock  v.  Al-  the  complaint  of  such  allegation  the 

ling,  44  Ind.  184.    In  order  that  an  ad-  judgment  will  be  arrested  on  motion, 

ministrator    may    recover    for    dece-  Stewart  v.  Terre  Haute  &c.  R.   Co., 

dent's  death,  the  heirs  need  not  have  103   Ind.  44,  2  N.  E.  208;   Burns  v. 

a  legal  claim  on  decedent,  but  the  pe-  Grand   Rapids   &c.,  R.    Co.,   113    Ind. 

cuniary    value    of    what    they   would  169,  15  N.  E.  230;  Hecht  v.  Ohio  &c. 

probably  have  derived  had  he   lived  R.  Co.,   132  Ind.  507,  32  N.  E.  302; 

may   be    recovered.     Chicago    &c.    R.  State  v.  Walford,  11  Ind.  App.  392,  39 


654  INDIANA    PROBATE    LAW.  §    4OO 

The  right  of  action  given  by  this  statute  is  for  causing  the 
death  of  a  person  by  a  wrongful  act  or  omission  of  another,  in 
cases  where  the  deceased,  had  he  Hved,  might  have  maintained  an 
action  for  an  injury  to  himself  arising  from  the  same  cause.  In 
one  case  our  Supreme  Court  says :  "The  right  of  compensation 
for  the  bodily  injury  of  the  deceased,  which  died  with  him,  re- 
mains extinct.  The  right  of  action  created  by  the  statute  is 
founded  on  a  new  grievance,  namely :  causing  the  death,  and  is 
for  the  injury  sustained  thereby,  by  the  widow  and  children  or 
next  of  kin,  of  the  deceased,  for  the  damages  must  inure  to  their 
exclusive  benefit.  They  are  recovered  in  the  name  of  the  personal 
representatives  of  the  deceased,  but  do  not  become  assets  of  the 
estate.  The  relation  of  the  administrator  to  the  fund,  when  re- 
covered, is  not  that  of  the  representative  of  the  deceased,  but  of 
a  trustee  for  the  benefit  of  the  widow  and  next  of  kin.  The  ac- 
tion is  for  their  exclusive  benefit,  and  if  no  such  person  existed  it 
could  not  be  maintained."" 

The  right  to  bring  such  action  extends  throughout  the  jurisdic- 
tion of  the  state  and  upon  all  the  navigable  waters  upon  the 
boundaries  of  the  state  over  which  it  has  jurisdiction,  either 
solely  or  concurrently  with  other  states. ^^ 

§  400.  Same — Administrator's  right. — This  statute  gives 
to  the  administrator  the  sole  right  to  prosecute  the  action  pro- 
vided for,  and  by  implication  the  right  to  control  such  action. 
The  heirs  of  the  decedent  are  not  parties  to  the  action  and  can 

N.  E.  162.    Compensatory  damages  in  plaint  should  show  that  the  action  is 

such   cases   include  compensation   for  not  barred.     Hanna  v.  Jeffersonville 

pain  and  suffering,  as  well  as  for  pe-  R.  Co.,  Z2  Ind.  113. 
cuniary   expenditures   of   the   injured        "Indianapolis  &c.  R.  Co.  v.  Keely, 

party.    Ohio  &c.  R.  Co.  v.  Dickerson,  23  Ind.  133;  Jeffersonville  &c.  R.  Co. 

59  Ind.  317.    The  names  and  relation-  v.  Hendricks,  41  Ind.  48;  Stewart  v. 

ship  to  the  deceased,  of  the  persons  Terre  Haute  &c.  R.  Co.,  103  Ind.  44, 

entitled  to  receive  the  damages,  should  2  N.  E.  208 ;  Lucas  v.  New  York  &c. 

be   stated  in  the   complaint.     Indian-  R.  Co.,  21  Barb.  (N.  Y.)  245;  Chicago 

apolis   &c.   R.   Co.   v.   Keely,  23   Ind.  &c.    R.    Co.    v.    Morris,   26   111.    400; 

133 :     Stewart    v.    Terre    Haute    &c.  Lyons  v.  Cleveland  &c.  R.  Co.,  7  Ohio 

R.  Co.,  103  Ind.  44,  2  N.  E.  208.    The  St.  336,  70  Am.  Dec.  75. 
action  must  be  commenced  within  two        ^  Sherlock  v.  Ailing,  44  Ind.  184. 
years   after  the   death  and  the   com- 


§    400  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  655 

exercise  no  control  over  it,  and  a  settlement  with  them,  by  way 
of  compromise,  cannot  be  pleaded  as  a  defense  to  the  action  by 
the  administrator.^^ 

The  right  given  by  this  statute  is  a  continuation  in  the  personal 
representative  of  the  cause  of  action  which  would  have  existed 
for  the  negligence  and  wrongful  act  in  favor  of  the  deceased  if 
he  had  survived.^*  The  administrator  would  have  the  same  right 
to  control  the  action  that  the  deceased  would  have  had  had  he 
sur\uved  and  prosecuted  it.^^  The  heirs  have  no  right  to  compro- 
mise such  action;  the  administrator  has  sole  control  over  such 
action,  and  the  right  to  prosecute  it  to  final  judgment,  and  to  ac- 
cept and  collect  the  amount  of  damages  assessed.  The  defendant 
cannot  plead  a  compromise  with  the  heirs  as  a  defense  to  an  ac- 
tion by  the  administrator.^® 

The  personal  representative  is  given  a  right  of  action  by  this 
statute  only  in  cases  where  the  deceased  himself  might  have 
maintained  an  action  had  he  lived;  therefore,  where  an  injured 
party  has  brought  suit  against  the  wrong-doer  and  recovered 
damages  in  his  lifetime,  such  judgment  being  paid  and  received 
by  him,  no  right  of  action  remains  to  his  personal  representative, 
although  such  injured  person  afterwards  dies  from  the  injuries 
received.  An  action,  for  a  cause  of  action  liquidated  and  satis- 
fied, cannot  survive  in  favor  of  any  person.'*' 

When  the  death  of  one  is  caused  by  the  wrongful  act  or  omis- 
sion of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter,  but  the  death  of 
the  latter  abates  the  action.  The  statute  being  in  derogation  of 
the  common  law,  must  be  strictly  construed.  The  plain  implica- 
tion from  the  language  of  the  statute  is  at  war  with  the  idea  that 

"  Yelton  V.   Evansville  &c.   R.   Co.,  ton  v.  Evansville  &:c.  R.  Co.,  134  Ind. 

134  Ind.  414,  33  N.  E.  629,  21  L.  R.  A.  414,  23  N.  E.  629,  21  L.  R.  A.  158n. 

158n  ;  Dowell  V.  Burlington  &c.  R.  Co.,  "  Markel   v.    Spitler,   28   Ind.   488; 

62  Iowa  629,  17  N.  W.  901.  Yelton  v.  Evansville  &c.  R.  Co.,  134 

^  Long  V.  Morrison,  14  Ind.  595,  77  Ind.  414,  33  X.  E.  629,  21  L.  R.  A. 

Am.  Dec.  72;  Yelton  v.  Evansville  &c.  ISSn;  Woerner,  Law  Admr.,  683. 

R.  Co.,  134  Ind.  414,  33  X.  E.  629,  21  ""  Hecht   v.    Ohio    &c.    R.    Co.,    132 

L.  R.  A.  158n.  Ind.  507,  32  X.  E.  302;  Littlewood  v. 

*=  Rogers  v.  Zook,  86  Ind.  237 ;  Yel-  Mayor,   89   X.   Y.   24,   42   Am.   Rep. 


656  INDIANA  PROBATE  LAW.  §  4OO 

the  legislature  intended  to  create  a  cause  of  action  en  forcible 
against,  as  well  as  by,  personal  representatives.^^ 

The  action  must  be  brought  and  must  be  maintained  to  the  end 
by  an  administrator.  He  pursues  the  remedy,  not  for  the  benefit 
of  the  estate,  but  as  a  trustee  specially  designated  by  the  statute 
to  recover  and  distribute  the  damages.^^  The  widow,  children 
and  next  of  kin  are  not  parties  to  the  action  and  have  no  right  to 
be  parties,  and  have  no  power  to  compromise  or  control  the  ac- 
tion.*" This  statute  creates  a  new  and  independent  right  of 
action  in  the  administrator  and  does  not  confer  upon  such  admin- 
istrator the  same  right  or  cause  of  action  that  would  have  vested 
in  the  deceased  in  his  lifetime." 

If  a  general  administrator  has  been  appointed  for  the  estate, 
the  right  of  action  under  this  statute  is  in  him  and  no  special 
administrator  can  be  appointed  merely  for  the  purpose  of  bring- 
ing suit.*" 

The  administrator  has  power  to  compromise  a  claim  arising 
under  this  statute  either  before  or  after  suit  has  been  begun,  and 

271 ;  Hegerich  v.  Keddie,  99  N.  Y.  258,  nothing  in  the  language  of  the  statute 

52  Am.  Rep.  25;  Helton  v.  Daly,  106  that   suggests   the   appointment   of   a 

111.  131 ;  Fowlkes  v.  Nashville  &c.  R.  special    representative    for    the   single 

Co.,  9  Heisk.  (Tenn.)  829.  purpose  of  prosecuting  the  suit.  There 

^^  Hamilton  v.  Jones,   125  Ind.   176,  is  nothing  in  the  act  forbidding  one 

25  N.  E.  192;  Hegerich  v.  Keddie,  99  person  from  acting  in  both  capacities. 

N.  Y.  258,  52  Am.   Rep.  25;   Ott  v.  There  is  no  duty  imposed  by  the  act 

Kaufman,   68    Md.    56,    11    Atl.    580;  that  may  become  inconsistent  with  the 

Russell  V.  Sunbury,  2)1  Ohio  St.  372,  duties    of    a    general    administrator. 

41  Am.  Rep.  523 ;  Moe  v.  Smiley,  125  And,  in  fine,  an  administrator,  clothed 

Pa.  St.  136,  17  Atl.  228,  3  L.  R.  A.  341.  virith  no  other  powers  or  duties  but  to 

^*  Dillier  v.  Cleveland  &c.  R.  Co.,  34  prosecute  a  suit  for  the  benefit  of  the 

Ind.  App.  52,  72  N.  E.  271 ;  Fabel  v.  widow  and  children  would  be  in  no 

Cleveland   &c.   R.   Co.,   30   Ind.   App.  sense   the  personal   representative   of 

268,  65  N.  E.  929.  the  deceased.  So  we  conclude  that  the 

**■  Cleveland  &c.  R.   Co.  v.  Osgood,  general  administrator  of  the  estate  of 

36  Ind.  App.  34,  IZ  N.  E.  285 ;  Pitts-  a  decedent  is  the  personal  representa- 

burgh  &c.  R.  Co.  v.  Moore,  152  Ind.  tive  of  such  deceased  person  within 

345,  53  N.  E.  290,  44  L.  R.  A.  638.  the  meaning  of  Sec.  285,  supra,  and 

^  Pittsburgh   &c.   R.   Co.  v.   Hosea,  the  only  proper  plaintiff  in  the  action 

152  Ind.  412,  53  N.  E.  419.  given  by  said  section."     Lake  Erie  &c. 

"  Lake  Erie  &c.  R.  Co.  v.  Charman,  Co.  v.  Charman,  161  Ind.  95,  67  N.  E. 

161  Ind.  95,  67  N.  E.  923.    "There  is  923. 


§  400 


EXECUTORS    AND    ADMINISTRATORS     SUITS. 


657 


it  is  not  necessary  to  his  exercise  of  snch  power  that  he  have  an 
order  of  court  to  compromise/" 

Such  an  action  may  be  maintained  by  a  foreign  administrator, 
and  the  amount  recovered  by  him  will  be  held  in  trust  for  the 
proper  beneficiaries.** 

But  such  action  cannot  be  maintained  by  an  administrator, 
whose  appointment  rests  upon  the  claim  for  damages  as  the  only 
assets  of  the  decedent  in  this  state,  the  intestate  being  at  the  time 
of  his  death  a  nonresident  of  this  state.  Letters  of  administra- 
tion so  issued  are  void.*^ 

The  intention  of  the  statute  is  to  provide  a  remedy  not  only 
for  the  citizens  of  this  state,  but  for  the  citizens  of  other  states 
while  passing  through  or  residing  in  this  state.**' 

It  must  appear  from  the  complaint  in  such  action  that  the  death 
was  caused  by  the  wrongful  act  or  omission  of  the  alleged  wrong- 
doer.*' 


''  Pittsburgh  &c.  R.  Co.  v.  Gipe,  160 
Ind.  360,  65  X.  E.  1034. 

"  Jeffersonville  &c.  R.  Co.  v.  Hen- 
dricks, 41  Ind.  48;  Jeflfersonville  &c. 
R.  Co.  V.  Hendricks,  26  Ind.  228. 

^'Jeffersonville  &c.  R.  Co.  v. 
Swayne,  26  Ind.  477;  Toledo  &c.  R. 
Co.  V.  Reeves,  8  Ind.  App.  667,  35  X. 
E.  199. 

**  Memphis  &c.  Packet  Co.  v.  Pickey, 
142  Ind.  304,  40  N.  E.  527. 

"  Sherfey  v.  Evansville  &c.  R.  Co., 
121  Ind.  427,  23  N.  E.  273;  Penns.vl- 
vania  Co.  v.  Long,  94  Ind.  250;  Low- 
rey  v.  Delphi,  55  Ind.  250 ;  Indiana 
Mfg.  Co.  V.  Millican,  87  Ind.  87.  A 
complaint  which  avers  that  a  locomo- 
tive engine  was  run  over,  upon  and 
against  the  deceased  wantonly,  reck- 
lessly and  willfully,  with  the  knowl- 
edge of  the  decedent's  unconscious- 
ness of  impending  danger,  states  a 
good  cause  of  action,  whether  the  de- 
cedent was  a  trespasser  or  not.  Pitts- 
burgh &c.  R.  Co.  V.  Judd,  10  Ind.  App. 
213,  36  N.  E.  775.     In  an  action  for 


the  death  of  plaintiff's  decedent,  al- 
leged to  have  been  caused  by  defend- 
ant's willful  conduct,  the  findings  in 
the  special  verdict  were  that  deceased 
entered  onto  defendant's  track  about 
half  a  mile  in  front  of  an  approaching 
train  going  at  about  twenty  miles  an 
hour,  and  walked  rapidly  toward  it. 
There  was  another  person  between  de- 
ceased and  the  train,  who  stepped 
from  the  track  in  time  to  avoid  being 
run  over.  Deceased,  as  he  approached 
the  train,  waved  his  arms  and  hands 
above  his  head.  The  engineer  saw  the 
deceased  at  the  time  he  entered  on  the 
track  and  signaled.  There  was  no 
finding  that  the  engineer's  conduct 
was  willful.  Held,  that  judgment  was 
properly  rendered  for  defendant. 
Barr  v.  Chicago  &c.  R.  Co.,  10  Ind. 
App.  433,  37  N.  E.  814.  In  a  suit  in 
the  name  of  an  administrator,  for  an 
injury  causing  the  death  of  his  intes- 
tate, the  complaint  need  not  negative 
contributory  negligence  by  the  admin- 
istrator.    Indiana  Mfg.  Co.  v.  Milli- 


42 — Pro.  Law. 


658 


INDIANA    PROBATE    LAW. 


§    400 


The  complaint  must  also  show  that  the  death  for  which  the 
action  is  brought  occurred  within  two  years  prior  to  the  com- 
mencement of  the  suit.*^^ 

A  husband  has  a  right  of  action  against  a  physician  for  mal- 
practice for  loss  of  the  wife's  services,  and  where  her  death 
results  from  such  malpractice,  her  personal  representative  would 
have  a  right  of  action  under  this  statute.*'' 


can,  87  Iiul.  87.  Where  a  complaint 
for  damages  resulting  from  the  death 
of  a  person  by  the  wrongful  act  of 
another,  judged  by  its  general  scope 
and  tenor,  shows  that  the  deceased 
left  next  of  kin,  and  that  the  action 
is  prosecuted  by  an  administrator  in 
his  representative  capacity,  it  is  suf- 
ficient if  it  states  a  cause  of  action  in 
his  favor  in  that  capacity,  although 
some  persons  are  described  as  next  of 
kin  who  are  not  such.  Clore  v.  Mc- 
Intire,  120  Ind.  262,  22  N.  E.  128.  A 
complaint  to  recover  damages  for  the 
death  of  a  person  must  show  that  the 
death  resulted  from  the  negligent  acts 
charged.  Louisville  &c.  R.  Co.  v. 
Thompson,  107  Ind.  442,  8  N.  E.  18, 
9  N.  E.  357,  57  Am.  Rep.  120;  City  of 
Greencastle  v.  Martin,  74  Ind.  449,  39 
Am.  Rep.  93 ;  Pennsylvania  Co.  v. 
Gallcntine,  11  Ind.  322;  Cincinnati  &c. 
R.  Co.  v.  Hiltzhauer,  99  Ind.  486; 
Pittsburgh  &c.  R.  Co.  v.  Conn,  104 
Ind.  64,  3  N.  E.  636;  Louisville  &c.  R. 
Co.  v.  Wood,  113  Ind.  544,  14  N.  E. 
572,  16  N.  E.  197;  Board  of  Com'rs  v. 
Pearson,  120  Ind.  426,  22  N.  E.  134, 
16  Am.  St.  325n ;  Ohio  &c.  R.  Co.  v. 
Engrer,  4  Ind.  App.  261,  30  N.  E.  924. 
*'  Hanna  v.  Jefifersonville  R.  Co.,  32 
Ind.  113.  A  defendant  is  not  a  com- 
petent witness  generally,  in  his  own 
behalf,  in  actions  to  recover  for  the 
death  of  a  person.  Hudson  v.  Hou- 
ser,  123  Ind.  309,  24  N.  E.  243.  The 
action  cannot  be  maintained  against 
the    personal    representatives    of    the 


wrongdoer.  Hamilton  v.  Jones,  125 
Ind.  176,  25  N.  E.  192.  To  constitute 
a  willful  injury,  the  act  which  pro- 
duced it  must  have  been  intentional, 
or  must  have  been  done  under  such 
circumstances  as  evinced  a  reckless 
disregard  for  the  safety  of  others,  and 
a  willingness  to  inflict  the  injury  com- 
plained of.  It  involves  conduct  which 
is  quasi  criminal.  Louisville  &c.  R.  Co. 
v.  Bryan,  107  Ind.  51,  7  N.  E.  807; 
Pittsburgh  &c.  R.  Co.  v.  Judd,  10  Ind. 
App.  213,  36  N.  E.  775.  A  complaint 
against  a  railroad  company,  to  be  good 
as  charging  willfulness  in  the  killing 
by  a  train  of  cars  of  a  person  for 
whose  death  damages  are  sought  to  be 
recovered,  must  show  that  the  de- 
ceased was  purposely  or  willfully 
killed,  or  that  the  train  was  purposely 
or  willfully  run  upon  him.  It  is  not 
sufficient  to  charge  that  the  acts  in  the 
management  of  the  train,  resulting  in 
the  death,  were  purposely  and  will- 
fully done.  Chicago  &c.  R.  Co.  v. 
Hedges,  105  Ind.  398,  7  N.  E.  801.  In 
an  action  against  a  city  by  the  repre- 
sentative of  a  person  whose  death  is 
alleged  to  have  been  caused  by  the 
defendant's  negligence,  evidence  that 
the  deceased  left  his  family  in  a  des- 
titute condition  is  incompetent.  City 
of  Delphi  V.  Lowery,  74  Ind.  520,  39 
Am.  Rep.  98;  Mayhew  v.  Burns,  103 
Ind.  328,  2  N.  E.  793. 

*'  Long  V.  Morrison,  14  Ind.  595,  11 
Am.  Dec.  72. 


§    40I  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  659 

§  401.  Construing  statutes  together. — The  section  of  the 
statute  under  immediate  consideration  must  be  construed  in  con- 
nection with  the  following:  "A  father,  or  in  case  of  his  death, 
or  desertion  of  his  family,  or  imprisonment,  the  mother,  may 
maintain  an  action  for  the  injury  or  death  of  a  child,  and  a 
guardian  for  the  injury  or  death  of  his  ward.  But  when  the 
action  is  brought  by  the  guardian  for  an  injury  to  his  ward,  the 
damages  shall  inure  to  the  benefit  of  his  ward."^° 

These  two  sections  of  the  statute  may  be  reconciled  and  given 
effect  to  by  holding  one  applicable  to  adults  and  the  other  to  in- 
fants. Both  sections  are  directed  to  one  common  object,  that  is, 
to  provide  a  statutory  action  for  injuries  or  death  resulting  to 
one  from  the  wrongful  act  or  omission  of  another.  The  pro- 
visions of  one  section  are,  in  terms,  limited  to  a  case  where  the 
result  of  such  act  or  omission  is  the  injury  or  death  of  a  child, 
and  is  so  far  exclusive  of  the  provisions  of  the  other  section, 
which  is  general  in  its  terms.  The  action  for  the  death  of  a  child 
must  be  brought  by  the  father,  or  in  case  of  his  death,  desertion, 
or  imprisonment,  by  the  mother,  or  by  the  guardian  for  his  ward, 
but  where  there  is  neither  father,  mother  nor  guardian,  the  case 
not  being  otherwise  provided  for  would  then  fall  within  the  pro- 
visions of  the  other  section,  and  the  action  might  be  brought  by 
the  personal  representative  of  such  child. ^^     There  is,  however, 

'"  Burns'  R.  S.  1908,  §  267.  If  the  a  wife  and  child  the  husband  may  re- 
death  of  a  minor  is  wrongfully  caused  cover  for  both  injuries  in  the  same  ac- 
his  administrator  cannot  sue  therefor  tion.  Cincinnati  &c.  R.  Co.  v.  Ches- 
while  the  minor  has  a  living  parent,  ter,  57  Ind.  297.  A  guardian  can  only 
unless  such  minor  had  been  emanci-  recover  for  expenditures  paid  out  of 
pated.  Berry  v.  Louisville  &c.  R.  Co.,  the  ward's  estate.  Louisville  &c.  R. 
128  Ind.  484,' 28  N.  E.  182.  See  Hecht  Co.  v.  Goodykoontz,  119  Ind.  HI,  21 
v.  Ohio  &c.  R.  Co.,  132  Ind.  507,  32  N.  N.  E.  472,  12  Am.  St.  371n.  An  ad- 
E.  302.  To  recover  damages  for  loss  ministrator  of  a  minor  child  cannot 
of  service,  they  should  be  specially  sue  for  the  death  of  the  child  when 
averred.  Pennsylvania  Co.  v.  Lilly,  7Z  the  parents  are  living,  unless  the  child 
Ind.  252.  A  widow  may  sue  for  the  has  been  emancipated.  Berry  v.  Louis- 
death  of  her  infant  child  caused  by  ville  &c.  R.  Co.,  128  Ind.  484,  28  N.  E. 
negligence.     Ohio  &c.  R.  Co.  v.  Tin-  182. 

dall,   13  Ind.  366,  74  Am.   Dec.  259;  "Berry  v.  Louisville  &c.  R.  Co.,  128 

Pennsylvania    Co.    v.    Long,    94    Ind.  Ind.  484,  28  N.  E.  182;  Ohio  &c.  R. 

250.    If  the  same  act  causes  injury  to  Co.  v.   Tindall,   13  Ind.  366,  74  Am. 


66o 


INDIANA    PROBATE    LAW 


§  4or 


but  one  right  of  action  which  may  exist  in  favor  of  the  i)arent  or 
in  favor  of  the  administrator,  but  the  right  is  not  in  both,  and 
but  one  recovery  can  be  hach  The  word  child  must  not  be  con- 
strued as  equivalent  to  the  word  minor,  but  is  limited  in  its  ap- 
plication to  one  who  occupies  the  position  of  a  child  to  a  parent  as 
depending  on  him  for  support,  protection  and  education.  an<l 
does  not  include  one  who.  although  a  minor,  has  assumed  the  re- 
lations and  resix)nsibility  devolving  on  the  head  of  a  family. 
The  intention  of  the  statute  seems  to  be  that  the  position  occu- 
[)ied  by  the  person  should  determine  the  character  in  which  the 
acli(jn  should  be  brougiit  rather  than  the  age."'" 


Dec.  259;  I'ittshurgli  &c.  R.  Co.  v. 
Vining.  21  Iml.  513.  92  Am.  Dec.  269; 
Cincinnati  &c.  R.  Co.  v.  Chester,  57 
Incl.  297;  Gann  v.  VVorman,  69  Ind. 
458;  Sherlock  v.  .\liing,  44  Ind.  184. 
In  an  action  against  a  railroad  com- 
pany for  tlie  death  of  plaintiff's  mnior 
son,  a  complaint  alleging  that  he  was 
walking  on  defendant's  track  at  a 
place  where,  for  twenty  years,  defend- 
ant had  permitted  persons  to  travel 
on  foot,  but  which  was  a  considerable 
distance  from  any  highway,  street,  or 
alley,  and  was  killed  by  the  tender  of 
an  engine  which  was  backing  at  an 
imlawful  rate  of  speed,  without  ring- 
ing the  bell  and  without  a  watchman, 
as  required  by  law,  but  failing  to  al- 
lege that  the  boy  went  on  the  track  by 
defendant's  invitation,  or  that  defend- 
ant could,  by  the  use  of  reasonable 
diligence,  have  discovered  him  and 
avoided  the  accident,  or  that  the  chil- 
dren were  in  the  habit  of  walking  on 
or  along  the  track,  with  defendant's 
knowledge,  or  that  defendant  knew 
that  children  were  likely  to  expose 
themselves  to  danger  by  going  on  the 
right  of  way  at  that  place,  is  demurra- 
ble. Cleveland  &c.  R.  Co.  v.  Adair, 
12  Ind.  App.  569,  39  N.  E.  672,  40  N. 
E.  822.    After  verdict,  a  complaint  by 


the  father  for  the  death  of  his  child 
which  alleged  that  the  mother  of  the 
child  was  sick  in  bed  and  compelled  to 
send  him  on  an  errand  across  a  street 
along  which  was  a  street  railroad; 
that  the  child  was  intelligent,  of 
strong  health,  and  that  he  was  too 
young  to  be  capable  of  rightly  appre- 
ciating danger,  or  to  have  proper  dis- 
cretion, did  not  show  negligence  on 
the  part  of  the  mother.  Citizens'  St. 
R.  Co.  v.  Stoddard,  10  Ind.  App.  278, 
n  X.  E.  121. 

"  Berry  v.  Louisville  &c.  R.  Co.,  128 
Ind.  484,  28  X.  E.  182 :  Pittsburgh  &c. 
R.  Co.  V.  Vining,  27  Ind.  513,  92  Am. 
Dec.  269.  An  action  for  an  injury 
causing  the  death  of  a  child  must  be 
brought  by  the  father,  the  mother  or 
guardian  of  the  child,  or.  in  the  ab- 
sence of  these,  by  the  administrator. 
Mayhew  v.  Burns,  103  Ind.  328,  2  X. 
E.  793.  In  an  action  by  a  father  for 
damages  for  the  death  of  his  child 
which  was  nine  years  of  age,  the  gen- 
eral averment  in  the  complaint  that 
the  parents  were  free  from  the  con- 
tributory fault  does  not 'include  the 
averment  that  the  child  was  also  free 
from  contributing  thereto ;  and  in  the 
complaint,  in  such  case,  it  was  neces- 
sary   to    aver    that    the    injury    from 


§    40I  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  66l 

No  time  within  which  the  action  shall  be  begun  is  fixed  by  this 
statute,  but  applying  the  doctrine  that  all  statutes  in  pari  materia 
are  to  be  construed  together,  it  has  been  held  that  the  general 
statute''-'  abrogates  the  common  law  rule  and  gives  a  right  of  ac- 
tion for  a  death  resulting  from  a  wrongful  act,  and  specifies  who 
shall  bring  the  action,  the  maximum  amount  of  recovery,  and 
limits  the  time  in  which  tlie  action  can  be  commenced  to  two 
years;  while  the  other  statute'*  only  modifies  this  one  so  far  as 
■  to  give  the  right  of  action  for  the  death  of  a  minor  child  to  the 
parent  instead  of  an  administrator,  and  that  the  condition  limit- 
ing the  right  to  bring  the  action  to  two  years  remains  unim- 
paired.°^ 

The  guardian  has  no  right  of  action  for  the  death  of  the  ward, 
except  to  reimburse  his  estate  for  the  necessary  expense  arising 
from  the  injury,  such  as  for  care  and  attention,  medical  services 
and  funeral  expenses.  The  right  of  action  for  loss  of  services, 
etc.,  is  in  the  father  or  mother.'" 

And  an  action  brought  by  the  father  for  the  death  of  a  child, 

which  the  child's  death  resulted  was  feet  from  a  crossing.     There  was  no 

not  caused  by  any  fault  on  its  part;  evidence  of  any  allurement  or  invita- 

for  it  cannot  be  conclusively  presumed  tion  to  the  boy  to  go  on  the  track  at 

as  a  matter  of  law,  of  a  child  of  such  that  point,  or  that  he  had  previously 

age,  that  it  is  incapable  of  contribu-  walked  thereon  with  defendant's  con- 

tory  negligence,  and  as  some  degree  sent,  or  knew  that  others  did,  and  no 

of  care  may  be  required  of  a  child  of  evidence  that  defendant  could,  by  the 

such  age,  the  degree  of  care  in  a  given  use  of  reasonable  diligence,  have  seen 

case  is  a  question  of  fact  for  the  jury,  the    boy    and    avoided  the    accident. 

Terre  Haute  &c.  R.  Co.  v.   Tappen-  Held,  that  the  defendant  was  not  lia- 

beck,  9  Ind.  App.  422,  36  N.  E.  915.  ble.  Cleveland  &c.  R.  Co.  v.  Adair,  12 

The    evidence    in    an   action   for   the  Ind.  App.  569,  39  N.  E.  672,  40  N.  E. 

death  of  a  boy  seven  years  old  showed  822. 

that  he  went  on  defendant's  track  by  "  Burns'  R.  S.  1908,  §  285. 
crossing    over    a    cattle    guard    at    a  "  Burns'  R.  S.  1908,  §  267. 
place   where    the    right   of   way   was  "Elliott  v.  Brazil  Block  Coal   Co., 
fenced  on  both  sides,  where  the  track  25  Ind.  App.  592,  58  N.  E.  736. 
was  on  an  embankment  two  or  three  °*  Louisville   &c.    R.    Co.   v.    Goody- 
feet  high,  and  where  a  great  number  koontz,  119  Ind.  Ill,  21  N.  E.  472,  12 
of    trains    were    continually    passing,  Am.  St.  371n ;  Berry  v.  Louisville  &c. 
and   was   struck   by   an   engine   at   a  R.  Co.,  128  Ind.  484,  28  N.  E.  182. 
point  on  the  track  over  nine  hundred 


662  INDIANA    PROBATE   LAW.  S    402 

may  be  continued  after  his  death  in  tlie  name  of  his  executor  or 
administrator.'" 

The  right  of  action  in  the  father  or  mother  conferred  by  the 
above  statute  is  an  independent  one,  and  is  in  no  wise  abridged 
by  the  other  statute.  These  statutes  introduce  into  our  system  of 
law  principles  wholly  foreign  and  unknown  to  the  common  law. 
The  one  by  adding  to  the  common  law  right  which  the  father 
had,  the  further  right  to  maintain  an  action  for  the  death  of  a 
child.  The  other  by  giving  to  the  widow,  children  or  next  of  kin, 
through  the  personal  representative,  a  right  to  recover  for  the 
loss  sustained  on  account  of  the  death  of  one  in  whose  life  tiiey 
may  have  had  a  pecuniary  interest.''''  The  father  as  adminis- 
trator of  his  infant  son  cannot  maintain  an  action  for  the  child's 
death,  unless  such  child  had  been  released,  or  emancipated  from 
the  care  and  service  of  the  parent,  otherwise  tiie  suit  must  be 
brought  under  the  other  statute,  the  father  having  no  right  to 
elect  under  which  statute  to  sue.''" 

§  402.  The  damages,  and  how  measured. — Xo  fixed  rule 
can  be  laid  down  by  which  to  measure  the  amount  of  the  recovery 
in  an  action  for  wrongfully  causing  the  death  of  a  person.  The 
damages  to  be  awarded  are  to  be  considered  according  to  the  par- 
ticular circumstances  of  each  case.  In  assessing  damages  result- 
ing to  the  wife,  children  or  next  of  kin.  the  ability  of  the  deceased 

"  Pennsylvania  Co  v.  Davis,  4  Ind.  whether  she  was  negligent  in  sending 

App.  51,  29  N.  E.  425.  the  child  across  the  street  on  an  er- 

^  Mayhew  v.  Burns,  103  Ind.  328,  2  rand.     Though  a  child  may  be  non  sui 

N.  E.  793;  Pennsylvania  Co.  v.  Lilly,  juris,  his  age,  intelligence,  and  e.xpe- 

73  Ind.  252.  riencc  should  be  considered,  in  an  ac- 

""  Berry  v.  Louisville  &c.  R.  Co.,  128  tion  for  his  injury,  on  the  question  of 

Ind.  484,  28  N.  E.  182.    Where  the  re-  whether  his  parents  were  in  fault  in 

lation   of  parent   and  child  does  not  permitting  him  to  be  at  the  place  of 

exist  the  action  must  be  brought  by  accident.    Citizens'  St.  R.  Co.  v.  Stod- 

the    personal    representative,    regard-  dard,  10  Ind.  App.  278,  37  N.  E.  723. 

less  of  the  age  of  the  deceased.  May-  It  cannot  be  said  as  a  matter  of  law, 

hew  v.  Burns,  103  Ind.  328,  2  N.  E.  that  a  boy  twelve  years  old  is  capable 

793.     In  an  action  by  the  father  for  of  taking  care  of  himself  at  a  depot, 

the  killing  of  his  child  by  a  street  car,  New  York  &c.  R.  Co.  v.  Mushrush,  11 

the  fact  that  the  mother  was  sick  may  Ind.  App.  192,  37  N.  E.  954,  38  N.  E. 

be    considered    on    the    question    of  871. 


§    402  EXECUTORS    AND    ADMINISTRATORS'    SUITS.  663 

to  have  provided  for  the  support  and  education  of  those  depend- 
ent upon  him,  is  a  matter  to  be  considered,  as  well  as  the  number, 
and  the  degree  of  relationship  of  the  kindred  mentioned  in  the 
statute  and  their  dependence  upon  him  for  support.  These  are 
important  considerations,  but  it  is  not  necessary  to  the  mainte- 
nance of  the  action  for  the  next  of  kin  that  the  deceased  should 
have  been  under  any  legal  obligation  to  render  them  support.  It 
is,  however,  of  consequence  that  their  relation  and  situation 
should  be  shown  with  a  view  of  affording  a  basis  upon  which  to 
determine  the  amount  of  pecuniary  loss  sustained."" 

The  damages  assessed  must  be  based  on  the  injuries  resulting 
from  the  death  of  sucli  person  to  the  wife  and  children,  or  next 
of  kin,  for  whose  benefit  the  right  of  action  is  given." 

The  right  to  sue  in  such  cases  is  purely  a  statutory  one  and  in 
derogation  of  the  common  law;  and,  as  the  statute  must  be 
strictly  construed,  it  is  therefore  necessary  to  bring  a  case  clearly 
within  its  provisions  to  enable  the  plaintiff  to  recover.  The  right 
to  sue  is  given  to  the  personal  representative  of  the  deceased  and 
the  action  is  prosecuted  in  his  name;  but  the  damages,  if  any,  re- 
covered, inure  to  the  exclusive  benefit  of  the  widow  and  children, 
or  next  of  kin ;  the  action  is  therefore  prosecuted  for  their  ben- 
efit. If  the  deceased  should  leave  no  wife,  children  or  next  of 
kin  surviving  him,  capable  of  taking  under  this  statute,  an  action 
would  not  lie ;  for  this  reason  it  is  necessary  that  the  complaint 
in  such  an  action  should  aver  that  there  are  such  persons  to  whom 
under  the  statute  the  damages  inure."- 

~  Mayhew  v.  Burns,  103  Ind.  328,  2  Morrison,  14  Ind.  595,  11  Am.  Dec. 
N.  E.  793 ;  2  Williams'  Extrs.,  p.  874,  72.  As  to  what  is  held  not  to  be  ex- 
note  d.  In  an  action  to  recover  for  cessive  damages  in  actions  under  this 
the  death  of  the  husband,  his  earn-  statute,  see  Jeffersonville  &c.  R.  Co. 
ings  may  be  shown  and  the  amount  v.  Riley,  39  Ind.  568;  Howard  County 
expended  by  him  in  providing  for  his  v.  Legg,  93  Ind.  523,  47  Am.  Rep. 
family.  Hudson  v.  Houser,  123  Ind.  390;  Ohio  &c.  R.  Co.  v.  Voight,  122 
309,  24  N.  E.  243.  The  measure  of  Ind.  288,  23  N.  E.  774. 
damages  accruing  to  a  husband  for  "Jeffersonville  &c.  R.  Co.  v. 
the  death  of  a  wife,  is  the  loss  of  ser-  Swayne,  26  Ind.  477. 
vice.  Nothing  can  be  awarded  him  "'Indianapolis  &c.  R.  Co.  v.  Keely's 
for  her  pain   or  suffering.     Long  v.  Admr.,  23  Ind.  133 ;  Stewart  v.  Terre 


664  INDIANA    PROBATE    LAW.  §    4O2 

In  an  action  under  the  statute  for  an  injury  causing  death,  the 
defendant  cannot,  by  way  of  reducing  the  amount  of  recovery, 
show  that  the  person  for  whose  benefit  the  action  is  brought  has 
received  money  on  a  pohcy  of  insurance  on  the  life  of  the  de- 
ceased."'* 

The  fund  recovered  by  way  of  damages  is  chargeable  with  the 
necessary  expense  of  collecting  the  same.  Such  expenses  as  are 
incurred  by  the  administrator  in  prosecuting  the  action;  attorney 
fees,  administrator's  services  and  the  expenses  of  the  administra- 
tion. The  net  proceeds  after  deducting  all  such  expense  inure 
to  the  benefit  of  the  widow  and  children,  if  any,  or  to  the  next  of 
kin,  to  be  distributed  in  the  same  manner  as  the  personal  estate  of 
a  decedent  is  distributed."^ 

Where  an  administrator  or  executor  brings  an  action  to  re- 
cover damages  for  the  death  of  his  decedent,  caused  by  the 
wrongful  act  of  another,  and  fails  in  the  suit,  it  is  error  to  direct 
in  the  judgment  against  him  as  plaintiff,  that,  if  there  be  no 
property  of  the  decedent,  the  costs  shall  be  levied  on  the  property 
of  such  executor  or  administrator."^ 

The  measure  of  damages  is  compensation  for  the  pecuniary 
loss  sustained  by  the  party  or  parties  entitled  to  the  benefit  of  the 
action.  The  damages  are  not  to  be  estimated  at  the  value  of  the 
life  lost,  but  at  such  a  sum  as  will  compensate  the  persons  on 
whose  behalf  the  action  is  brought  for  the  pecuniary  injury 
which  they  have  sustained  by  the  death.""  The  difficulty  in  mak- 
ing a  concrete  application  of  the  rule  arises  from  the  fact  that  the 
extent  of  the  compensation  in  such  cases  is  so  largely  a  question 
for  the  jury. 

In  one  case  the  court  says :     'The  assessment  of  damages  in 

Haute  &c.  R.  Co.,  103  Ind.  44,  2  N.  E.  Ind.  149;  Priest  v.  Martin,  4  Blackf. 

208;  Saflford  v.  Drew,  3  Duer  (N.  Y.)  (Ind.)  311. 

627.  "^Consolidated  Stone  Co.  v.  Staggs, 

«  Sherlock  v.  Ailing,  44  Ind.  184.  164  Ind.  331,  11  N.  E.  695;  Anderson 

"*  Yelton  V.   Evansville  &c.   R.   Co.,  v.  Chicago  &c.  R.  Co.,  35  Neb.  95,  52 

134  Ind.  414,  IZ  N.  E.  629,  21  L.  R.  A.  N.    W.   840 ;   8   Am.   &   Eng.    Encyc. 

158n.  Law,  909;   Diebold  v.   Sharp,   19  Ind. 

"Evans  v.  Newland,  34  Ind.   112;  App.  474,  49  N.  E.  837. 

Cavanaugh  v.  Toledo  &c.  R.  Co.,  49 


§    40-  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  66$ 

actions  of  this  character  does  not  admit  of  fixed  rules  and  mathe- 
matical precision,  but  is  a  matter  left  to  the  sound  discretion  of 
the  jury.  The  courts  refuse  to  lay  down  any  cast-iron  rules  or 
mathematical  formula  by  which  such  damages  are  to  be  ciphered 
out  by  juries.""  There  can  be  no  recovery  of  compensation  by 
way  of  solace  for  wounded  feelings  or  for  loss  of  the  society  and 
companionship  of  a  relative.  While  the  damages  must  be  con- 
fined to  loss  of  something  to  which  a  money  value  may  be  at- 
tached by  the  jury,  they  include  compensation  for  losses  which 
are  difficult  of  exact  estimation  and  the  damages  for  which  must 
of  necessity  be  left  to  the  jury  without  any  exact  data  to  act  on.''^ 

As  the  law  rests  upon  the  husband  and  father  the  duty  to  sup- 
port his  wife  and  children,  it  will  on  their  behalf,  imply  damage 
when  his  death  results  from  the  wrongful  act  of  another,  and  in 
such  case  the  obligation,  disposition,  and  ability  to  earn  wages  or 
to  conduct  business  and  to  care  for  and  support,  advise,  and  pro- 
tect those  dependent  upon  him  are  proper  matters  of  evidence 
to  aid  the  jury  in  arriving  at  the  amount  of  damages.®'  Where 
the  action  is  brought  for  the  benefit  of  the  widow  and  children, 
the  administrator  is  entitled  to  recover  the  damages  suffered  by 
the  beneficiaries  through  the  loss  of  support  and  maintenance  in 
addition  to  the  prospective  accumulation  of  property.'"  Evidence 
as  to  the  character  of  the  decedent  for  sobriety  and  industry  is 
competent  on  the  question  of  damages.''  Evidence  of  the  mar- 
riage of  the  widow  of  the  decedent  and  of  her  habits  and  moral 
character  is  not  competent  on  the  question  of  damages. '- 

Under  the  statute  providing  for  an  action  by  the  father  or 
mother  for  the  death  of  a  child  the  damages  recoverable  are  ar- 
rived at  from  a  consideration  of  the  probable  value  of  the  child's 

■''  Railroad  v.  Spence,  93  Tenn.  173,  Reed,  44  Ind.  App.  635,  88  N.  E.  1080. 

23  S  W  211,  42  Am.  St.  907.  "  Lake  Erie  &c.  R.  Co.  v.  Mugg,  132 

«*Hunt  V.  Conner,  26  Ind.  App.  41,  Ind.  168,  31  X.  E.  564;  Hurst  v.  Con- 

59  N.  E.  50 ;  Malott  v.  Skinner,  153  ner,  26  Ind.  App.  41,  59  N.  E.  50. 

Ind    35    54   N.    E.    101,   74   Am.    St.  ^Pittsburgh  &c.  R.  Co.  v.  Parish, 

278n;  Pittsburgh  &c.  R.  Co.  v.  Reed,  28  Ind.  App.  189,  62  N.  E.  514,  91  Am. 

44  Ind.  App.  635.  88  N.  E.  1080.  St.  120. 

'"  Hunt  V.  Conner,  26    Ind.  App.  41,  "  ConsoHdated    Stone    Co.   v.    Mor- 

59  N.  E.  50;  Pittsburgh  &c.  R.  Co.  v.  gan,  160  Ind.  241,  66  N.  E.  696. 


666  INDIANA    PROBATE    LAW. 


403 


services  from  the  time  of  the  injury  until  it  would  have  attained 
its  majority,  taken  in  connection  with  its  expectancy  and  pros- 
pects in  life,  less  the  probable  cost  of  its  support  and  mainte- 
nance; to  which  should  be  added  the  expense,  if  any,  made  neces- 
sary by  the  injury  in  the  way  of  care,  attention,  nursing,  medical 
service,  funeral  expenses,  etc.'^ 

It  is  competent  to  show  the  income  of  the  decedent  before  his 
death,  as  well  as  his  ability  and  capacity  for  labor  and  skill  in  his 
calling/* 

§  403.  Distribution  of  the  damages.— The  damages  recov- 
ered for  injuries  arising  from  the  death  of  one  caused  by  the 
wrongful  act  of  another,  do  not  become  assets  in  the  hands  of 
the  administrator  of  the  deceased  person  subject  to  general  ad- 
ministration. Such  damages  are  not  assets  of  the  estate  and  are 
not  subject  to  the  demands  of  the  creditors  of  such  decedent. 
The  fund  so  derived  is  liable  only  for  the  reasonable  expense  of 
its  collection  and  distribution  and  to  the  funeral  expenses  of  the 
deceased,  doctor's  bills,  care  and  nurse  hire,  if  any,  occasioned 
by  the  injury. 

The  damages  are  in  tlie  hands  of  the  administrator,  not  for 
administration,  but  as  a  trust  fund  for  the  benefit  of  those  en- 

"  Pennsylvania  Co.  v.  Lilly,  73  Ind.  the  damages  are  confined  to  the  pe- 

252;  2  Thompson,   Negligence,   1292;  cuniary     injury     sustained.     Pennsyl- 

Cooley    on    Torts,    270;    Jackson    v.  vania  Co.  v.  Lilly,  73  Ind.  252.     Such 

Pittsburgh  &c.  R.  Co.,  140  Ind.  241,  39  damages  belong  to  the  parent  and  are 

N.  E.  663,  49  Am.  St.  192.    In  an  ac-  not  distributed  to  him  or  next  of  kin. 

tion    for    the    wrongful    death    of    a  Mayhew  v.  Burns,  103  Ind.  328,  2  N. 

child,  the  question   of  whether  there  E.  793.    There  is  no  right  of  action  in 

would  be  a  financial  profit  in  bringing  the    husband    for    the    death    by    the 

up  a  child  in   a  city,  and  without  a  wrongful   act,   &c.,   of   anoiher,   of   a 

home,  is  for  a  jury.     Citizens'  St.  R.  bastard    child    of    his   wife.      It   is    a 

Co.  V.  Lowe,  12  Ind.  App.  47,  39  N.  question  just  where  the  right  of  action 

E.  165.    At  common  law  a  father  can-  lies     in     such     case.     Thornburg     v. 

not  recover,  as  damages  for  the  negli-  American    Strawboard    Co.,    141    Ind. 

gent  killing  of  his  child,  the  necessary  443,  40  N.  E.  1062,  50  Am.  St.  334. 

funeral   expenses.     Jackson  v.    Pitts-  '*  Louisville   &c.   R.   Co.   v.   Clarke, 

burgh  &c.  R.  Co.,  140  Ind.  241,  39  N.  152  U.  S.  230,  38  L.  ed.  422,  14  Sup. 

E.  663,  49  Am.  St.  192.     In  an  action  Ct.  579. 
by  a  parent  for  the  death  of  a  child 


§    403  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  66/ 

titled  thereto  under  the  statute.  There  are  two  classes  of  bene- 
ficiaries recognized  by  the  statute.  The  first  class  consists  of  the 
widow  or  widower  and  the  children,  if  there  be  any  such  persons. 
The  second  class  consists  of  other  persons  who  are  next  of  kin 
to  the  decedent.  Those  in  the  second  class  are  entitled  to  take 
only  in  the  absence  of  any  one  in  the  first  class.  No  recovery 
can  be  had  for  the  benefit  of  persons  in  the  second  class  if  there 
be  persons  of  the  first  class  entitled.'^^ 

The  children  of  a  decedent  are  the  next  of  kin,  but  they  are 
put  in  the  class  with  the  widow  or  widower,  as  the  case  may  be, 
but  the  phrase  ''next  of  kin"  used  in  the  statute  relates  to  others 
than  children  of  the  decedent.  In  the  absence  of  beneficiaries  of 
the  first  'class  who  have  suffered  pecuniary  loss,  the  damages 
should  be  paid  to  the  "next  of  kin"  who  are  shown  to  have  suf- 
fered loss.  The  law  implies  damages  of  a  substantial  character 
to  the  widow  or  widower  and  to  minor  children,  and  if  there  is 
no  widow  or  widower,  and  the  children  are  adults,  or  the  bene- 
ficiaries are  in  the  second  class,  then  pecuniary  loss  must  be  estab- 
lished by  proof. 

For  unless  there  be  living  at  the  time  the  right  of  action  ac- 
crues, and  at  the  time  of  the  commencement  of  the  action  and  the 
awarding  of  damages,  some  person  or  persons  related  to  the  de- 
cedent, of  whom  it  can  be  said  that  the  law  implies  damages  by 
reason  of  the  death,  or  who  may  be  shown  to  have  suffered  pe- 
cuniary loss  through  the  death  of  the  administrator's  decedent, 
there  can  be  no  recovery.'*' 

The  question  of  non-existence  of  persons  entitled  to  damages 
under  the  statute  is  matter  of  defense  in  the  action,  and  dam- 
ages finally  accrued  that  question  becomes  adjudicated,  and  it  is 
then  only  a  question  of  who  is  entitled.     The  damages  recov- 

"  Pittsburgh  &c.  R.  Co.  v.  Reed,  44  Ind.  App.  52,  72  N.  E.  27 ;  Grace  &c. 

Ind.  App.  635,  88  N.  E.  1080;  Dillier  v.  Co.  v.  Strong,  224  111.  630,  79  N.  E. 

Cleveland  &c.  R.  Co.,  34  Ind.  App.  52,  967 ;  Louisville  &c.  R.  Co.  v.  Goody- 

72  N.  E.  271;  Wabash  R.  Co.  v.  Cre-  koontz,  119  Ind.  Ill,  21  N.  E.  472,  12 

gan,  23   Ind.  App.   1,  54  N.   E.  767;  Am.  St.  371n;  Pittsburgh  &c.  R.  Co. 

Duzan  v.  Myers,  30  Ind.  App.  227,  65  v.  Reed,  44  Ind.  App.  635,  88  N.  E. 

N.  E.  1046,  %  Am.  St.  341.  1080. 

'"  Dillier  v.  Cleveland  &c.  R.  Co.,  34 


668  INDIANA  PROBATE  LAW.  §  4O3 

ered  are  1jy  the  terms  of  the  statute  to  be  distributed  in  the  same 
manner  as  personal  property  of  the  deceased.  They  inure  first 
to  the  benefit  of  the  widow  or  widower  and  children,  if  any,  and  if 
there  are  none  in  this  class,  then  to  tlie  next  of  kin."' 

A  recovery  of  damages  may  be  had  under  this  statute  although 
those  entitled  thereto  are  aliens  and  non-residents  of  this  state.^* 

The  omission  of  the  name  of  a  i)eneficiary  from  the  complaint 
in  an  action  for  damages  under  this  statute  does  not  deprive  such 
person  of  a  right  to  a  share  in  the  fund;  nor  does  the  fact  that  a 
minor  child  was  practically  emancipated,  and  had  for  years  prior 
to  the  father's  death  been  living  with  strangers,  deprive  it  of  a 
right  to  sliare  in  the  fund  recovered  as  damages  for  the  father's 
death."" 

The  sum  recovered  is  not  subject  to  the  claims  of  creditors. 
The  law  bestows  it  upon  the  beneficiaries,  but  the  rule  for  the 
apportionment  of  the  fund  among  tliem  is  an  arbitrary  one  bor- 
rowed from  the  law  of  descents  and  distribution.^*' 

§  404.  Right  of  set-off. — The  statute  provides  that  "when 
cross-demands  have  existed  between  persons  under  such  circum- 
stances that  one  could  be  pleaded  as  a  counter-claim  or  set-off  to 
an  action  brought  upon  the  other,  neither  can  be  deprived  of  the 
benefit  thereof  by  the  assignment  or  death  of  tlie  other,  and  the 
two  demands  must  be  deemed  compensated,  so  far  as  they  equal 
each  other. "*^ 

This  statute  gi\es  the  right  to  the  holder  of  any  such  claim 
to  treat  it  as  having  liquidated  an  equal  amount  of  the  other 
claim  upon  the  death  of  the  holder  of  the  latter.  ■- 

In  construing  the  above  section  of  the  statute,  the  Supreme 

"  Cleveland  &c.   R.   Co.   v.  Osgood,  ™  Duzan  v.  Myers,  3a  Ind.  App.  221, 

36  Ind.  App.  34,  11  N.  E.  285 ;  Mem-  65  N.  E.  1046,  96  Am.  St.  341. 

phis  &c.  Packet  Co.  v.  Pikey,  142  Ind.  «» Hunt  v.  Conner,  26  Ind.  App.  41, 

304,  40  N.  E.  527 ;  Pittsburgh  &c.  R.  59  N.  E.  50. 

Co.  V.  Moore,  152  Ind.  345,  53  N.  E.  "Burns'   R.    S.    1908,    §   357;    ante, 

290,  44  L.  R.  A.  638;  Duzan  v.  Myers,  §  331. 

30  Ind.  App.  227,  65  N.  E.   1046,  96  ^  Schoonover  v.  Quick,  17  Ind.  196; 

Am.  St.  341.  Huffman  v.  Wyrick,  5  Ind.  App.  183^ 

'"  Cleveland  &c.  R.   Co.  v.  Osgood,  31  N.  E.  823. 
36  Ind.  App.  34,  IZ  N.  E.  285. 


§    404  EXECUTORS    AND    ADMINISTRATORS'    SUITS.  669 

Court  of  this  state  says:    "The  provisions  of  this  section  of  the    , 
code  are  in  substantial  accord  with  a  long  line  of  well-recognized 
authorities  on  the  subject  of  cross-demands,  and  are  but  an  af- 
firmance of  what  we  would  feel  it  our  duty  to  hold  the  law  to  be 
if  there  were  no  statute  on  that  subject  in  force  in  this  state.    To 
entitle  a  defendant,  therefore,  to  plead  set-off  to  an  action  against 
him  by  an  executor  or  administrator,  his  cross-demand  must  have 
been  an  existing  demand  against  the  testator  or  intestate  at  the 
time  of  his  death.     It  is  not  necessary  that  the  cross-demand 
thus  existing  in  favor  of  the  defendant  should  have  become  due 
at  the  time  of  the  testator's  or  intestate's  death.     It  is  sufficient 
if  it  becomes  due  and  payable  in  time  to  be  pleaded  as  a  set-off 
in  the  same  manner  as  if  the  testator  or  intestate  had  lived  to 

bring  the  action.""' 

In  an  action  bv  an  executor  or  administrator  on  a  claim  due 
his  decedent,  the' defendant  cannot  set  off  a  demand  for  money 
paid  after  the  death  of  a  testator  or  intestate  upon  a  liability 
entered  into  bv  such  defendant  as  surety  for  such  decedent.  Such 
a  demand  is  good  against  the  estate,  but  the  holder  thereof^can 
only  look  to  the  general  assets  of  the  estate  for  satisfaction.'^ 

A  set-off  is  not  barred  by  the  general  statute  of  limitations 
to  the  extent  of  the  sum  sued  for,  and  may  be  asserted  as  a  de- 

-Convery  V.  Langdon,  66Ind.  311;  no  cause  of  action  for  more  than 
Rawson  v.  Copland,  3  Barb.  Ch.  (X.  nominal  damages,  and  that  the  bu- 
Y  )  166;  Waterman,  Set-oflf,  §  97.  preme  Court  will  not  ':everse  m  such 
-Convery  v.  Langdon,  66  Ind.  311;  case.  Rhine  v.  Morns,  96  Ind.  81. 
Grangerv.  Granger,  6  Ohio  35;  Mer-  Where  an  administrator  pays  to  a 
cein  V  Smith,  2  Hill  (N.  Y.)  210;  creditor  of  the  estate  the  full  amount 
Waterman,  Set-off,  §  197.  A  joint  of  his  claim  and  takes  a  receipt  con- 
debtor,  having  obtained  an  agreement  taining  an  agreement  *«  /^.^^^ 
with  those  jointly  indebted,  that  they  that,  in  the  event  the  estate  is  found 
would  assume  payment  of  the  debt,  to  be  insolvent,  the  creditor  will  re- 
died  whereupon  the  debt  was  allowed  fund  to  the  administrator  the  amount 
against  his  estate.  His  administrator  received  less  the  dividend  to  which  he 
sued  the  survivors,  alleging  the  fore-  is  entitled,  there  is  no  devastavit  the 
going  facts,  but  alleging  neither  that  agreement  is  upon  a  sufficient  consid- 
his  decedent's  estate  had  been  com-  eration,  and  if  the  estate  proves  to  be 
pelled  to  pay  said  debt,  nor  that  there  insolvent  the  administrator  may  en- 
were  any  assets  belonging  to  such  es-  force  7P^>--  "^^^^'t  E  315 
tate   Held,  that  the  complaint  showed  teller,  120  Ind.  319,  22  ^.  E.  315. 


6/0  INDIANA    PROBATE    LAW.  §    4O4 

fense,  though  a  separate  action  could  not  be  maintained  upon 
it.**''  And  where  a  debtor  has  had  no  opportunity  to  assert  a 
claim  in  his  favor  as  a  set-off  against  a  debt  due  from  him  to 
an  estate  pending  the  administration  of  such  estate,  he  may  do 
so  after  the  final  settlement  against  a  distributee.*" 

Judgments  may  be  set  off  against  each  other ;  but  the  question 
as  to  whether  a  judgment  in  favor  of  an  estate  ought  to  be  set 
off  and  canceled  by  one  against  it,  is  not  affected  by  the  solvency 
of  the  estate  on  the  one  hand,  or  its  insolvency  on  the  other.  The 
law  requires  that  there  shall  be  mutuality  in  the  claims  or  judg- 
ments attempted  to  be  set  off.  As  is  said  in  one  case :  "There  are 
obvious  reasons  for  this  rule.  To  allow  a  set-off  to  a  debtor  of 
an  indebtedness  that  did  not  exist  at  the  time  of  the  death  of  the 
decedent,  or  to  permit  a  liability  incurred  by  the  personal  repre- 
sentative to  be  pleaded  as  a  set-off  to  a  debt  due  the  decedent  in 
his  lifetime,  would  change  the  course  of  distribution  of  intestate 
estates.""  The  principle  of  mutuality,  in  such  cases,  requires  that 
the  debts  should  not  only  be  due  to  and  from  the  same  persons, 
but  in  the  same  capacity.-" 

A  judgment  against  an  executor  in  his  individual  character 
cannot  be  set  off  against  a  judgment  in  his  favor  as  such  execu- 
tor, although  he  may  also  be  sole  legatee  under  the  will  by  virtue 
of  which  he  is  acting.'^" 

And  while,  as  a  rule,  only  judgments  may  be  set  off  against 
judgments,  so  that  on  motion  one  may  be  used  to  satisfy  the 
other,  yet.  where  there  are  some  special  circumstances,  such  as 

^Tox  V.  Barker,  14  Ind.  309;  Arm-  ment  for  the  excess  of  his  claim,  and 

strong  V.  Ceasar,  72  Ind.  280;   War-  the  court  did  not  give  him  such  judg- 

ring  V.  Hill,  89  Ind.  497.    In  Huffman  ment." 

V.  Wyrick.  5  Ind.  App.  183,  31  N.  E.  «"  Huflfman  v.  Wyrick,  5   Ind.  App. 

823,  it  is  said :     "No  one  would  ques-  183,  31  N.  E.  823. 

tion  the  right  of  the  appellee,  if  he  ""  Carter   v.    Compton,   79   Ind.   11; 

had  actually  paid  the  notes  to  the  de-  Quick  v.  Durham,  115  Ind.  302,  16  N. 

cedent  during  her  lifetime,   to  plead  E.  601. 

such  payment  in  this  action;  and  the  "*  Dayhuff  v.  Dayhuff,  27  Ind.   158; 

statute   above    quoted   gave    him    the  Harte  v.  Houchin,  50  Ind.  Ill;  Wel- 

right  to  treat  the  notes  as  paid  by  his  born  v.  Coon,  57  Ind.  270. 

claim,  upon  the  death  of  the  decedent.  ^  Hiatt  v.  Hiatt,  30  Ind.  190. 
*    *    *    He  was  not  entitled  to  judg- 


§    405  EXECUTORS    AND    ADMINISTRATORS'    SUITS.  67 1 

insolvency  or  non-residence,  or  other  extraneous  facts  to  form  a 
basis  for  equity  jurisdiction,  an  equitable  set-off  may  be  allowed 
by  a  claim  not  in  judgment  against  one  in  judgment  upon  the 
ground  that  one  demand  is  pro  tanto,  a  satisfaction  of  the  other, 
and  that  the  real  indebtedness  is  merely  the  balance.  And  this 
doctrine  applies  to  executors  and  administrators  where  cross-de- 
mands exist  between  the  estate  and  third  parties. ^'^ 

§  405.  Judgments  against  executors,  etc. — Where  a  judg- 
ment has  been  taken  against  an  executor  or  administrator  in  his 
representative  capacity  on  a  cause  of  action  against  the  estate  of 
his  decedent,  it  must  be  paid  out  of  the  assets  of  the  estate  he 
represents,  and  is  only  nominally  a  judgment  against  him.  It  is 
a  judgment  against  the  estate  upon  which  he  administers,  and  is 
never  to  be  paid  unless  the  estate  is  able  to  pay  it.  The  adminis- 
trator or  executor  is  not,  by  such  judgment,  rendered  absolutely 
liable  for  its  payment.  It  would  be  error  to  render  a  judgment  in 
such  a  case  against  him  for  the  debt  de  bonis  propriis.''^ 

Such  a  judgment  is  not  within  the  statute  authorizing  replevin 
bail.  Judgments  which  are  made  repleviable  are  those  rendered 
against  defendants  in  their  personal  capacities,  which  they  are 
bound  to  pay  absolutely  out  of  their  own  property.**" 

No  execution  or  other  final  process  shall  be  issued  on  any  al- 
lowance or  judgment  rendered  upon  a  claim  against  a  decedent's 
estate  for  the  collection  thereof,  out  of  the  assets  of  the  estate, 
but  all  such  claims  shall  be  paid  by  the  executor  or  administrator 
in  full,  or  pro  rata  in  due  course  of  administration.®^ 

The  property  of  a  decedent's  estate  in  the  hands  of  the  dece- 
dent's administrator  to  be  administered  is  not  subject  to  levy 

^Reno  V.   Robertson,  41   Ind.  567;  such,  to  be  paid  out  of  the  estate  o£ 

Lindsay  v.  Jackson,  2  Paige  (N.  Y.)  the  deceased,  is  not  substantially,  but 

580;  Keightley  v.  Walls,  24  Ind.  205.  merely  nominalh-,  a  judgment  against 

"  Egbert  v.  State,  4  Ind.  399 ;  Song-  him." 

er  V.  Walker,  1  Blackf.    (Ind.)   251;  "Egbert  v.  State,  4  Ind.  399;  Tay- 

Steinmetz  v.   State,  47  Ind.  465.     "A  lor  v.  Russell,  75  Ind.  386. 

judgment  against  an  administrator,  as  ^^  Burns'  R.  S.  1908,  §  2845. 


672  IMJIAXA    PROBATE    LAW.  §    405 

and   sale  under  an  ordinary   execution   issued   on   a   judgment 
against  such  administrator.'*^ 

Tiiere  is  only  one  instance  under  the  law  as  it  now  is  in  this 
state  where  an  execution  may  be  levied  upon  the  property  of 
a  decedent  in  the  hands  of  his  executor  or  administrator;  if  the 
judgment  be  against  real  or  personal  property  in  the  hands  of 
personal  representatives,  heirs,  devisees,  legatees,  tenants  of  real 
property,  or  trustees,  it  shall  require  the  sheriff  to  satisfy  the 
judgment  out  of  such  property."^ 

In  construing  this  clause  of  the  statute  the  court  says,  "Under 
our  law  there  is  but  one  case  in  which  the  property  of  a  decedent 
in  the  liands  of  his  administrator  can  be  sold  upon  execution, 
and  that  is  where  the  judgment  upon  which  the  execution  issues 
directs  the  sale  of  certain  specified  proi)erty.  in  the  hands  of  the 
administrator,  to  satisfy  said  judgment.  In  all-  other  cases  the 
spirit  and  intention  of  the  law  of  this  state  for  the  settlement  of 
decedents'  estates  are  in  direct  conflict  with  the  idea  that  any  part 
of  a  decedent's  estate,  in  the  hands  of  his  administrator,  to  be 
administered,  can  be  subject  to  levy  and  sale  on  execution,  issued 
on  a  judgment  against  the  administrator.  *  *  *  It  is  obvious, 
we  think,  that  the  scheme  and  purpose  of  the  statute  providing 
for  the  settlement  of  decedents'  estates,  and  for  the  just  and  equal 
payment  of  the  decedents'  creditors,  according  to  their  priority, 
would  be  defeated  if  the  property  of  the  decedent,  in  the  hands  of 
his  administrator  to  be  administered,  were  subject  to  le\y  and  sale 
on  execution,  issued  on  a  judgment  against  the  administrator; 
we  have  no  statute  in  this  state,  except  the  one  above  referred  to 
in  the  particular  case  therein  mentioned,  which  authorizes  such 
levy  and  sale  on  execution  of  the  property  of  the  decedent  in 
the  hands  of  the  administrator  or  a  judgment  against  the  admin- 
istrator;  and   without   express   legislative   authority   therefor   it 

"Johnson    v.    Meier,    62    Ind.    98.  decedent's   estate,  there  ought  not  to 

Where  an  administrator  is  sued  in  his  be  a  judgment  against  him  for  costs, 

individual  capacity  for  the  recovery  of  iNIackey  v.  Ballou.  112  Ind.  198,  13  X. 

personal    property    of    which    he    had  E.  715. 

taken  possession  in  his  representative  "^  Burns'  R.  S.  1908,  §  724,  Clause  2. 
capacity,  believing  it  to  belong  to  the 


§    406  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  673 

seems  clear  to  us  that  the  courts  of  this  state  have  no  power  to 
order  and  direct  that  a  judgment  against  an  administrator,  but 
for  the  sale  of  specific  property,  should  be  levied  of  the  property 
of  the  decedent  in  the  hands  of  the  administrator."^*' 

§  406.  Proceedings  after  judgment.—A  party  in  whose  fa- 
vor judgment  has  heretofore,  or  shall  hereafter,  be  rendered  may, 
at  any  time  within  ten  years  after  the  entry-  of  judgment,  pro- 
ceed to  enforce  the  same  by  execution. °' 

Under  this  statute  executors  and  administrators  may  have 
execution  upon  judgments  obtained  by  them  upon  demands  and 
claims  due  the  estate  of  their  decedent.  They  may  also  have  exe- 
cution and  other  legal  process  upon  any  judgment  obtained  by  the 
decedent  in  his  lifetime,  or  by  any  preceding  executor  or  admin- 
istrator. The  statute  reads:  "Any  executor  or  administrator 
shall  have  power  to  prosecute  any  writ  of  error  or  appeal  taken 
by  the  testator  or  intestate,  or  by  his  predecessor,  and  he  may 
have  execution  and  other  legal  process  issued  on  any  judgment 
obtained  by  the  testator  or  intestate,  or  by  his  predecessor  in 
the  trust,  without  reviving  the  same  by  scire  facias  or  any  other 
notice  to  the  judgment  defendant."^'  When  an  execution  de- 
fendant shall  die  after  levy  and  before  sale,  the  property  levied 
on  shall  be  sold  in  the  same  manner  as  if  he  were  alive;  but  if 
no  levy  has  been  made  in  such  case,  such  execution  shall  be 
returned  without  further  proceedings  and  its  lien  on  the  goods  of 
the  defendant  divested;  and  if  the  plaintiff  die  after  execution 
has  issued,  the  same  shall  be  executed  and  returned  as  if  such 
plaintiff  were  living. ''^ 

Under  this  statute  if  the  judgment  plaintiff  die  after  execution 
has  been  issued,  it  may  nevertheless  be  executed  and  the  money 
arising  therefrom  be  paid  to  his  executor  or  administrator;  or 
if  such  plaintiff  has  appointed  no  executor,  and  administration 

''Johnson    v.    Meier,    62    Ind.    98;        '' Burns'  R.  S.  1908,  §  2812;  Wyant 

Daily  v.  Robinson,  86  Ind.  382;  Right  v.  Wyant,  38  Ind.  48;  Mavity  v.  East- 

V.   Taylor,  97   Ind.   392;   Bowman  v.  ridge,  67  Ind.  211. 
Citizens'  Nat.  Bank,  25  Ind.  App.  38,        ''Bums'  R.  S.  1908,  §  1818;  Murray 

56  N.  E.  39.  V.   Buchanan,  7  Blackf.    (Ind.)    549; 

"  Burns'  R.  S.  1908,  §  716.  Egbert  v.  Mercer,  66  Ind.  305. 

43 — Pro.  Law. 


674  INDIANA    PROBATE    LAW.  ?$    4O7 

has  not  been  granted  on  his  estate,  the  money  mnst  be  brought 
into  court  and  deposited  until  there  be  some  one  authorized  to 
receive  it.^ 

While  it  is  error  in  a  judgment  against  an  executor  or  ad- 
ministrator in  his  representative  capacity,  to  direct  execution 
to  be  levied  against  him  personally,  yet  if  a  judgment  is  so 
entered  it  will  be  binding  upon  him  until  modified  or  reversed.* 

§  407.  Effect  of  death  of  party  to  judgment. — At  common 
law  where  a  sole  plaintiff  died  after  judgment  and  before  execu- 
tion, though  the  death  occurred  within  a  year  from  the  rendition 
of  the  judgment,  his  personal  representatives  could  not  have  exe- 
cution without  reviving  the  judgment  ;•'  but  this  statute  now 
makes  such  revivor  unnecessary,  and  yet,  although  a  revivor 
is  made  unnecessar\\  the  statute  docs  not  take  away  the  com- 
mon-law rights  of  having  such  judgments  revived  in  proper 
cases.*  By  the  provisions  of  §  1566,  Burns'  R.  S.  1894.  such  re- 
vivor is  still  expressly  authori;;ed  in  judgments  before  justices  of 
the  peace.  The  statute  says  :  *'J"flg"ie"ts  in  favor  of  any  deceased 
person  may  be  revived  in  favor  of  his  personal  representatives 
on  complaint  and  summons."  The  same  rules  of  law  in  regard 
to  this  matter  apply  to  foreign  executors  and  administrators 
of  judgment  creditors  as  apply  to  resident  ones." 

The  rule  of  law  is  different  where  a  judgment-debtor  dies  be- 
fore the  enforcement  of  the  judgment  against  him  by  execution. 

*  Murray    v.    Buchanan,    7    Blackf.  money;   or  if  the  plaintiff  has  made 

(Ind.)   549;   Mavity  v.  Eastridge,  67  no  executor,  or  administration  is  not 

Ind.  211;  Doe  v.  Hayes,  4  Ind.  117;  granted,  the  money  must  be  brought 

Ewing  V.  Hatfield,  17  Ind.  513.  into  court  and  deposited,  until  there 

'State  V.  Ritter,  20  Ind.  406;  Evans  be  a  representative  to  receive  it."  Doe 

V.  Newland,  34  Ind.  112;  Cavanaugh  v.  Hayes,  4  Ind.  117;  Egbert  v.  Mer- 

V.   Toledo   &c.   R.   Co.,  49   Ind.    149 ;  cer.  66  Ind.  305. 

Mackey  v.  Ballon,  112  Ind.  198,  13  N.  ■*  Wyant  v.  Wyant,  38  Ind.  48;  Arm- 

E_  715.  strong  v.   McLaughlin,  49   Ind.   370; 

»  Williams'  Executors,  806.  In  Mur-  Egbert  v.  ?^Iercer,  66  Ind.  305 ;  Mavity 

ray  v.  Buchanan.  7  Blackf.  (Ind.)  549,  v.  Eastridge,  67  Ind.  211. 

it  is  said:    "If  the  plaintiff  die  after  a  '  Jeffersonville  &c.   R.   Co.  v.  Hen- 

fieri  facias  is  sued  out,  it  may  be  ex-  dricks,    41    Ind.    48;    Thomasson    v. 

ecuted  notwithstanding,  and  his  exec-  Brown,  43  Ind.  203. 
utor  or  administrator  shall  have  the 


§    407  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  675 

It  then  becomes  necessary  for  the  judgment-plaintiff  to  have  the 
judgment  revived  against  the  heirs  and  personal  representatives 
of  such  deceased  debtor.  The  statute  provides  that,  ''in  case  of 
the  death  of  any  judgment-debtor,  the  heirs,  devisees  or  legatees 
of  such  debtor,  or  the  tenant  of  real  property  owned  by  him 
and  affected  by  the  judgment,  and  the  personal  representatives 
of  the  decedent,  may,  after  the  expiration  of  one  year  from  the 
time  of  granting  letters  testamentary  or  of  administration  upon 
the  estate  of  the  decedent,  be  summoned  to  show  cause  why 
the  judgment  should  not  be  enforced  against  the  estate  of  the 
judgment-debtor  in  their  hands  respectively.'"'  "The  judgment- 
creditor,  his  representative  or  attorney,  shall  file  an  affidavit 
that  the  judgment  has  not  been  satisfied,  to  his  knowledge  or 
information  and  belief,  and  shall  specify  the  amount  due  thereon, 
and  the  property  sought  to  be  charged."^ 

"A  summons  shall  be  issued,  sen-ed  and  returned,  or  publi- 
cation may  be  made  as  in  other  cases;  issues  shall  be  formed 
and  tried  as  in  an  original  suit;  and  the  court  shall  order  the 
property  in  the  hands  of  the  heirs,  devisees  or  legatees,  or  in 
the  hands  of  the  tenant  of  real  property,  to  be  sold  to  pay  the 
judgment."* 

'  Burns'  R.  S.  1908,  §  651.     Enforc-  er  v.  Gilbert,  80  Ind.  107.    The  statute 

ing  a  judgment  against  the  lands  of  a  contemplates  the  filing  of  proceedings, 

deceased  judgment-debtor  cannot  af-  forming  of  issues,  and  a  trial  as  in 

feet  the  interest  of  his  widow  in  such  ordinary    civil    actions.      Faulkner    v. 

lands,  nor  does  the  words  "tenant  of  Larrabee,   Id  Ind.    154.     Proceedings 

real   property"   apply   to   her,   though  to  revive  a  judgment  against  the  heirs 

she  may  be  living  on  the  lands.    They  of  the  judgment-defendant,  so  as  to 

apply  to  a  person  who  holds  as  a  ten-  have  execution  against  lands  inherited 

ant  under  a  lease.    Hill  v.  Sutton,  47  by  them,  must  be  brought  in  the  court 

Ind.  592.    The  right  to  have  the  lands  where    the   judgment   was    rendered, 

sold  to  pay  the  judgment  must  be  en-  and   an   independent  suit  therefor  in 

forced  before  the  lien  of  the  judgment  another    county,    where    a    transcript 

expires.    Jones   v.    Detchon,   91    Ind.  has  been  filed,  to  obtain  a  lien,  cannot 

1^4-  be  maintained,  where  the  lands,  with- 

'  Burns'  R.  S.  1908,  §  652.  out  fraud,  have  passed  to  a  purchaser. 

*  Burns'  R.  S.  1908,  §  653.     Where  Thompson  v.  Parker,  83  Ind.  96;  Con- 

a  judgment-defendant  dies  before  ex-  ner  v.  Neff,  2  Ind.  App.  364,  27  N.  E. 

ecution  issued,  the  lien  of  the  judg-  645. 
ment  must  be  enforced  by  suit.    Deck- 


676  INDIANA  PROBATE  LAW.  §  407 

In  an  action  to  enforce  a  judgment  against  the  real  estate  of 
a  deceased  judgment-debtor  under  these  statutes,  the  complaint 
must  show  that  the  personal  estate  of  such  decedent  has  been 
exhausted,  or  is  insufficient  to  pay  the  judgment,  otherwise  it 
will  be  bad  on  demurrer."  This  for  the  reason  that  the  personal 
estate  of  a  decedent  is  the  primary  fund  out  of  which  his  debts 
must  be  paid.^" 

Such  application  cannot  be  made  until  after  the  expiration  of 
a  year  from  the  granting  of  letters  upon  the  deceased  debtor's 
estate.  In  so  far  the  sections  above  set  out  must  be  construed 
with  §  2847,  Burns'  R.  S.  1908.'^ 

Under  these  statutes,  upon  the  death  of  a  judgment-debtor 
after  judgment  and  before  the  issuing  of  an  execution  thereon, 
no  execution  can  be  issued  without  reviving  the  judgment  against 
the  personal  representatives,  heirs,  etc.,  of  such  deceased  debtor.^- 

It  is  a  settled  rule  of  the  common  law  that  an  execution  can- 
not be  issued  after  the  death  of  the  execution-debtor  which  will 
authorize  the  sale  of  real  estate  bound  by  the  lien  of  the  judg- 
ment; and  when  a  person  who  was  not  a  party  to  the  original 
judgment  becomes,  by  the  death  of  the  execution-defendant,  an 
owner  of  the  real  estate  affected  by  the  judgment,  the  common 
law  required  that  he  should  be  made  a  party  by  scire  facias, 
before  an  execution  could  rightfully  issue.  These  statutes  pro- 
vide that  in  case  of  the  death  of  any  judgment-debtor,  the  heirs 
of  such  debtor  may,  after  the  expiration  of  one  year  from  the 
time  of  granting  letters  of  administration,  be  summoned  to  show 

•  Pauley  v.   Langdon,  83  Ind.  353 ;  "  Levering  v.  King,  97  Ind.  130.  An 

Allen  V.  Vestal,  60  Ind.  245.     A  judg-  application    to    enforce    a    judgment 

ment  of   foreclosure   of   a  mortgage  against  a  decedent's  estate,  cannot  be 

merges   the   cause   of    action   on   the  objected  to  by  the  tenant  of  real  es- 

mortgage,    but    not    its    specific    lien,  tate,  against  which  it  is  sought  to  en- 

and  such  judgment  may  be  revived  as  force   the   judgment,   on   the   ground 

against  the  grantee  of  the  mortgagor  that    the    application    fails    to    show 

after  the  expiration  of  ten  years  from  whether  or  not  there  are  assets  in  the 

its  entry  and  within  twenty  years  from  hands  of  the  administrator.     Cox  v. 

the  date  of  the  mortgage.    Evansville  Stout,  85  Ind.  422. 

Gas  Light  Co.  v.  State,  IZ  Ind.  219,  38  "  Louden  v.  Day,  6  Ind.  7 ;  State  v. 

Am.  Rep.  129n,  Michaels,  8  Blackf.  (Ind.)  436. 

"  Chandler  v.  Chandler,  78  Ind.  417. 


§    407  EXECUTORS    AND   ADMINISTRATORS*    SUITS.  ^y^J 

cause  why  the  judgment  should  not  be  enforced.     The  rule  is 
substantially  the  same  as  at  common  law." 

In  one  case  the  court  says :  "A  party  summoned  is  to  show 
cause  why  the  judgment  should  not  be  enforced  against  the 
property  in  his  hands.  If  it  is  sought  to  charge  any  specific 
property  it  should  be  designated.  If  the  judgment  ought  not 
to  be  enforced  against  property  in  the  hands  of  one  of  the  de- 
fendants because  it  ought  to  be  paid  with  assets  primarily  lia- 
ble in  the  hands  of  another  person,  this  would  seem  to  be 
proper  matter  for  such  defendant's  answer.  Though,  in  pur- 
suance of  the  words  of  the  statute,  the  personal  representative 
be  summoned,  if  he  in  fact  have  no  assets,  it  could  make  no 
difference  to  other  defendants  that  this  fact  was  not  alleged  in 
the  affidavit;  and  if  he  have  assets  which  should  be  applied  on 
the  judgment,  such  application  would  lessen  the  burden  of  the 
other  defendants,  and,  therefore,  would  be  matter  of  defense 
for  them;  and  his  possession  of  such  assets  would  not  seem  to 
lie  more  in  the  knowledge  of  the  plaintiff,  whose  averments 
must  be  made  under  oath,  than  in  that  of  the  tenant  of  real  prop- 
erty."^* 

"Faulkner  v.  Larrabee,  76  Ind.  154;  pointed  at  the  instance  of  the  judg- 

Decker  v.  Gilbert,  80  Ind.  107.    J.  ob-  ment  creditor.     Jones  v.  Detchon,  91 

tained  a  judgment  against  R.,  which  Ind.  154. 

became  a  lien  on  the  lands  of  the  lat-  "  Cox  v.  Stout,  85  Ind.  422.     §  406, 

ter  on  the  18th  of  March,  1868.     In  Code  of  1852,  providing  for  the  issu- 

November,  1867,  R.  disappeared,  and  ing  of  execution,  does  not  apply  when 

was  not  afterward  heard  of,  but  no  the  judgment  debtor  has  died,  and  his 

administrator   of   his   estate  was   ap-  land  has  passed  into  the  hands  of  his 

pointed    until    November,    1879,     and  heirs.  For  the  enforcement  of  a  judg- 

after  that  a  suit  was  begun  to  enforce  ment  against  real  estate  of  a  deceased 

the  lien  of  the  judgment  against  lands  judgment  debtor  in  the  hands  of  his 

of  which  R.  was  seized  when  the  judg-  heirs,  there  must  be,  under  §  642,  et 

ment  was   rendered.     Held,  that  the  seq..  Code  of  1852,  proper  pleadings, 

lien  was  lost  by  delay.    Held,  that  the  and  the  decision  of  the  issues  by  a 

death   of    R..   presumed   to    have  oc-  regular  trial ;  and  a  complaint,  in  such 

curred  in  November,  1872,  did  not  re-  case,    which   fails    to    show   that    any 

strain  proceedings  to  enforce  the  lien  property    of    the    decedent    has    come 

until  after  his  administrator  was  actu-  into    the    hands    of    the    heir    against 

ally  appointed  in  1879,  but  only  until  whom  relief  is  sought  is  insufficient, 

an  administrator  might  have  been  ap-  Faulkner  v.  Larabee,  76  Ind.  154. 


678  INDIANA    PROBATE   LAW.  §    408 

It  is  a  good  plea  in  bar  of  such  action  that  the  judgment  de- 
fendant did  not  die  seized  in  fee-simple  of  the  real  estate  sought 
to  be  subjected  to  execution. ^^ 

The  statute  seems  intended  to  embrace  any  judgment  or  exe- 
cution that  may  reach  the  personal  or  real  estate  of  the  dece- 
dent that  may  be  made  assets  in  the  hands  of  the  executor  or 
administrator  for  the  payment  of  debts. ^" 

As  tlje  personal  representative  is  a  necessaiy  party  to  an  action 
under  these  statutes,  the  af^davit  or  sworn  complaint  should 
show  the  death  of  the  judgment-debtor  and  the  appointment  of 
an  administrator.'' 

§  408.  Proceedings — How  long  delayed, — The  enforce- 
ment of  any  judgment  rendered  against  a  decedent  in  his  lifetime 
is  suspended  for  one  year  from  the  death  of  such  decedent.'^ 
And  proceedings  against  the  heirs,  devisees,  legatees,  personal 
representatives,  etc.,  of  the  deceased  judgment-debtor,  to  require 
them  to  show  cause  why  the  judgment  should  not  be  enforced, 
may  be  begun,  "after  the  expiration  of  one  year  from  the  time 
of  granting  letters  testamentary,  or  of  administration  uix)n  the 
estate  of  the  decedent. "''' 

The  death  of  a  judgment-debtor  need  not  long  delay  the 
judgment-creditor  from  proceeding  on  his  judgment.  The  mean- 
ing of  the  word  "restrained,"  in  §  617,  Burns'  R.  S.  1894.  is  to  be 
hindered  and  prevented,  and  does  not  mean  a  voluntary  delay. 

"Armstrong  v.  Milligan,  6  Blackf.  "Joyce  v.  Hufford,  7  Blackf.  (Ind.) 

(Ind.)  463.     Where  a  person  has  ac-  382.     In  an  appHcation  to  enforce  a 

quired   a  lien   on   real  estate   by  the  judgment,  it  is  not  error  to  put  in  evi- 

filing    and    docketing    of    a    justice's  dence  a  record  showing  that  there  has 

transcript  in  the  clerk's  office,  and  the  been  an  injunction  restraining  the  sale 

debtor    afterward    has    conveyed    the  on  e-xecution  of  lands  to  satisfy  the 

land  to  a  third  person,  and  afterward,  judgment.     Cox  v.  Stout,  85  Ind.  422. 

and  before  the  clerk  has  issued  execu-  "Walker  v.  Hood,  5  Blackf.  (Ind.) 

tion,  said  debtor  has  died,  the  creditor  266;  Bryer  v.  Chase,  8  Blackf.  (Ind.) 

must  enforce  his   lien  by  suit.     The  508,  46  Am.  Dec.  489. 

complaint  to  enforce   such  lien  need  "  Burns'  R.  S.  1908.  §  2847. 

not  allege  that  there  is  no  property  of  "Burns'  R.  S.  1908,  §  651,  Lovering 

the  estate  of  the  debtor  out  of  which  v.  King,  97  Ind.  130. 
the  judgment  can  be  made.    Decker  v. 
Gilbert,  80  Ind.  107. 


§    409  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  679 

The  law  provides  that  any  time  after  the  death  of  an  intestate, 
letters  of  administration  shall  be  granted,  first  to  the  widow, 
second  to  the  next  of  kin,  third  to  the  largest  creditor,  and  if  no 
person  apply  within  twenty  days  after  the  death  of  the  intestate, 
the  clerk  or  court  shall  appoint  a  competent  inhabitant  of  the 
county,  to  whom  letters  shall  issue.  When  he  has  power  to  act, 
he  is  not  restrained,  and  under  the  law  he  \vill  be  hindered  from 
proceeding  on  his  judgment  no  longer  than  such  a  time  as  he 
might  have  been  appointed  administrator,  or  might  have  had 
some  one  else  appointed,  and  for  one  year  thereafter.-'' 

§  409.  Revivor  of  judgment. — In  all  actions  where  a  sole 
defendant  dies  after  judgment  and  before  execution,  the  judg- 
ment must  be  revived,  either  against  his  personal  representatives, 
or  the  heirs,  devisees,  or  terre-tenants,  as  the  case  may  be,  and 
an  execution  issued  after  the  death  of  such  defendant  without 
the  revivor  of  the  judgment  would  be  void.''  The  personal 
representatives  of  such  decedent  are  necessary  parties  to  any 
action  to  revive  such  judgment,"  and  the  complaint  in  such 
action  should  show  the  death  of  the  judgment-debtor  and  the  ap- 
pointment, if  any  had  been  made,  of  an  executor  or  administra- 
tor of  his  estate.''  And  where  heirs  and  terre-tenants  are  made 
defendants  to  an  action  to  revive  a  judgment,  the  complaint 
should  show  that  property  of  the  decedent  came  to  their  hands, 
as  such  judgment  is  to  be  enforced  against  the  property  found  in 
their  hands  respectively.'* 

The  proper  judgment  in  such  proceedings  is,  that  the  money 
be  made  out  of  the  assets  of  the  decedent  in  the  hands  of  his 
personal  representative;  but  if  they  are  not  sufficient  then  out 
of  the  property  found  in  the  hands  of  the  heirs,  devisees,  lega- 
tees, or  terre-tenants."  As  the  lands  of  a  decedent  are  not  pri- 
marily assets  in  the  hands  of  his  executor  or  administrator,  the 

^  Jones  V.  Detchon,  91  Ind.  154.  "-=  Walker  v.  Hood,  5  Blackf.  (Ind.) 

^Statev.  Michaels,  8  Blackf.  (Ind.)  266.                                             t  j   ic. 

436-  Decker  v.  Gilbert,  80  Ind.  107.  ^Faulkner  v.  Larrabee,  n  Ind.  154. 

"Bryer  v.  Chase,  8  Blackf.   (Ind.)  "Graves    v.    Skeels,    6    Ind.    107; 

508  46  Am.  Dec.  489.  Faulkner  v.  Larrabee,  Id  Ind.  154. 


68o  INDIANA  PROBATE  LAW.  §  4IO 

law  contemplates  that  before  they  shall  be  subjected  to  the  pay- 
ment of  his  debts,  the  representatives  of  such  real  estate  shall 
have  an  opportunity  to  be  heard.  For  this  reason,  no  real  estate 
of  a  decedent  shall  be  subject  to  execution  on  any  judgment 
against  him  in  his  lifetime,  or  against  his  executor  or  admin- 
istrator, unless  the  heirs,  devisees,  and  terre-tenants  of  such  real 
estate  first  be  made  parties  to  such  judgment  in  the  manner  pre- 
scribed by  the  statute.-"  And  it  is  necessary  that  they  have  notice 
of  any  proceeding  to  revive  a  judgment  by  making  them  parties 
thereto.-^  The  complaint  should  make  the  tenants  of  the  real 
property  parties  to  the  action,  or  aver  that  there  are  none.-"" 

Proceedings  to  revive  a  judgment  must  be  brought  in  the  court 
where  the  judgment  was  rendered. -° 

§  410.  Liability  for  costs. — The  statute  provides  that  an 
administrator  or  executor  shall  not  be  liable,  in  any  suit  in  his 
individual  capacity,  for  the  costs  of  such  suit.^** 

At  common  law  neither  party  to  an  action  recovered  costs, 
and  the  general  rule  was  that  when  an  executor  or  administra- 
tor sued  as  such  he  was  not  personally  liable  for  the  costs,  but 
they  were  to  be  levied  of  the  goods  and  chattels  of  the  estate 
to  be  administered.  But  it  was  otherwise  if  the  executor  or 
administrator  sued  in  his  individual  capacity,  as  on  a  contract 
made  with  himself  as  executor  or  administrator,  or  for  trover 
or  conversion  of  the  decedent's  goods  during  his  own  time,  in 
which  case,  although  he  may  name  himself  as  executor  or  admin- 
istrator, yet  if  he  failed  in  the  suit  he  was  compelled  to  pay  the 
costs.  And  if  he  knowingly  brought  a  wrong  action,  or  was 
guilty  of  a  wilful  default,  or  failed  to  prosecute  his  suit,  he  was 
held  personally  liable  for  costs. ^^ 

=*  Joiner     v.     Sanders,     5     Blackf.  =^  Thompson  v.  Parker.  83  Ind.  96. 

(Ind.)  378.  ^»  Burns'  R.  S.  1908,  §  2808. 

=="  Elliott  V.  Moore,  5  Blackf.  (Ind.)  '^  Harrison    v.    Warner,    1    Blackf. 

270.  (Ind.)    385;    see  notes   to  this   case; 

'*  Williams  v.  Morehouse,  6  Blackf.  Pollard  v.  Buttery,  3  Blackf.   (Ind.) 

(Ind.)     215;     Welborn     v.     Jolly,    4  239 ;  Crane  v.  Hopkins,  6  Ind.  44. 
Blackf.     (Ind.)     279;    Armstrong    v. 
Milligan,  6  Blackf.  (Ind.)  463. 


§    4IO  EXECUTORS    AND   ADMINISTRATORS'    SUITS.  68 1 

Under  the  above  rules  of  law  an  executor  or  administrator 
being  a  stranger  to  the  affairs  of  the  deceased,  was  not  consid- 
ered liable  for  costs  when  he  acted  in  good  faith  and  could  not 
have  sued  in  his  own  right. ^- 

A  joint  suit  against  an  executor  or  administrator  and  the  co- 
obligor  of  the  decedent  upon  a  joint,  or  joint  and  several  obliga- 
tion, is,  in  respect  to  costs,  governed  by  the  ordinar)^  rules  of  the 
civil  code  and  not  by  the  provisions  of  the  act  for  the  settlement 
of  decedents'  estates.^^ 

An  administrator  prosecuting  an  action  in  which  the  estate  has 
no  interest  and  can  derive  no  benefit,  should  be  charged  with  the 
costs.  The  expense  of  such  litigation  should  not  in  such  case  be 
charged  against  the  estate.''  It  is  the  duty  of  the  administrator 
to  bring  all  suits  necessar}^  to  collect  the  debts  of  the  estate  and 
to  protect  and  preserve  the  property,  and  if  he  is  defeated  in 
such  actions  he  is  not  liable  for  the  costs  in  his  individual  capac- 
ity, but  they  should  be  paid  out  of  the  assets  of  the  estate,  and  a 
judgment  for  costs  should  be  so  rendered.  It  is  also  settled  that 
whatever  reasonable  costs  and  expenses  an  administrator  is  put 

^Cooper    V.    Thatcher,    3    Blackf.  Bank,  82  Ind.  21.     Where  an  admin- 

(Ind.)  59.  istrator  knowingly  brings  a  wrong  ac- 

^Lamson    v.    First    Nat.    Bank,    82  tion,  it  will  be  dismissed  at  his  own 

Ind.  21.    The  estate  of  a  deceased  ad-  cost.    Raugh  v.  Weis,  138  Ind.  42,  37 

ministrator  cannot  be  subjected  to  the  N.  E.  331.    Where  an  administrator  is 

costs  of  a  suit,  unless  the  administra-  sued  in  his  individual  capacity  for  the 

tor  had  neglected  some  duty,  or  unless  recovery     of     personal     property    of 

he  had  been  guilty  of  some  default,  which  he  has  taken  possession  in  his 

for   which   a   suit   might   have   been  representative  capacity,  believing  it  to 

maintained  against  him  had  he  lived,  belong   to   the   decedent's   estate,   the 

Lucas  V.  Donaldson,  117  Ind.  139,  19  costs  which  he  incurs,  in  good  faith, 

X.  E.  758.    A  joint  suit  against  an  ad-  in  defense  of  the  suit,  and  which  are 

ministrator  or   executor  and  the  co-  taxed   against   him  personally,    are   a 

obligor  of  the  deceased,  upon  a  joint  proper     charge     against     the     estate, 

or  joint  and  several  obligation,  is  gov-  :Mackey  v.  Ballou,  112  Ind.  198,  13  N. 

erned  in  respect  to  costs  by  the  rules  E.  715. 

of  the  code,  and  not  by  §  62  of  the  act        **  Cullen  v.  State,  28  Ind.  App.  33o, 

concerning  decedent's  estates,  2  R.  S.  62  N.  E.  759. 
1852,  p.  260.     Lamson  v.   First   Nat. 


682  INDIANA    PROBATE    LAW.  §    4IO 

to  in  defending  suits  brought  against  the  estate  should  be  allowed 
him  although  he  may  not  have  succeeded  in  such  defense. ^^ 

An  executor  or  administrator  is  not  bound  to  abandon  property 
of  his  decedent  upon  any  claim  made  to  it  by  others.  It  is  his 
dut}-  to  protect  and  preserve  the  property  to  the  estate  by  all 
proper  means,  including  a  proper  defense  in  a  litigation ;  and  for 
the  costs  in  such  a  defense  he  ought  not  to  be  made  personally  lia- 
ble. It  is  within  the  meaning  of  this  statute  that  he  should  not  be 
held  personally  liable  for  costs  which  may  accrue  in  a  defense 
against  claims  of  others  to  property  which  he  has  taken  posses- 
sion of  in  good  faith  as  the  property  of  the  estate.  Xor  does  it 
make  any  difference  whether  the  action  be  instituted  against  him 
personally  or  in  his  representative  character,  the  estate  should  be 
charged  with  the  costs.^" 

In  an  action  by  an  executor  or  administrator  to  recover  prop- 
erty of  the  estate,  it  is  error  to  decree  the  costs  of  such  suit 
against  him  personally:  but  if  this  is  done  such  decree  will  be 
effective  until  corrected  in  some  legal  manner.^' 

The  statute  provides  that  non-resident  executors  or  adminis- 
trators appointed  in  any  other  state  or  country  may  prosecute 
any  suit  in  any  court  in  this  state,  as  such  executor  or  admin- 
istrator, in  like  manner  and  under  like  restrictions  as  a  resi- 
dent; but  he  shall  give  bond  for  costs  under  the  law  regulating 
the  maintaining  of  suits  by  other  non-resident  citizens. ^^ 

"Bruning  v.  Golden,  159  Ind.   199,  '' Burns'   R.    S.    1908,    §§2816,  616; 

64  N.  E.  657.  Jeffersonville  &c.  R.  Co.  v.  Hendricks, 

="  Mackey  V.  Ballou,  112  Ind.  198,  13  41    Ind.    48;    Griggs    v.    Voorhies,    7 

N.  E.  715.  Blackf.  (Ind.)  561. 

"  State  V.  Ritter,  20  Ind.  406. 


CHAPTER  XIX. 

COMPETENCY  OF  WITNESSES. 

§  411.  The    common-law    rule    as    to  §  420.  The     statutes     construed     to- 

parties.  gether. 

412.  The  rule  in  Indiana.  421.  As  to  testimony  of  decedent's 

413.  When  executor  or  administra-  agent. 

tor  a  party.  422.  When  assignor  or  grantor  ex- 

414.  Same — Adverse  interest.  eluded. 

415.  In  case  of  joint  interest.  423.  When  executors  and  adminis- 

416.  As  to  admissions  and  declara-  trators  are  defendants. 

tions.  424.  Adverse  party  required  to  tes- 

417.  Cases  in  which  statute  does  not  tify. 

apply.  425.  Unjust  claim — Claimant's  testi- 

418.  Competency  in  contest  of  wills.  mony. 

419.  When    heirs    or    devisees    are 

parties. 

§411.  The  common-law  rule  as  to  parties. — At  common 
law  the  rule  as  laid  down  is,  that  a  party  to  the  suit  on  record 
cannot  be  a  witness  for  himself  or  for  a  joint  suitor  against 
the  adverse  party,  on  account  of  the  immediate  and  direct  inter- 
est which  he  has,  either  from  having  a  certain  benefit  or  loss, 
or  from  being  liable  to  costs. ^  It  is  said  "the  rule  which  ex- 
cludes a  party  from  giving  evidence  in  his  own  cause  is  not 
founded  merely  on  the  consideration  of  his  interest,  but  partly, 
at  least,  on  a  principle  of  policy  for  the  prevention  of  perjury."^ 
And  in  one  case  it  is  said  that  the  foundation  of  the  rule  is  the 
interest  which  the  party  has  in  the  event  of  the  suit,  both  as  to 
costs  and  the  subject-matter.^ 

^Phillips'  Ev.  56;  Haswell  v.  Buss-        "  Starkie  on  Ev.  1061. 
ing,  10  Johns  (N.  Y.)  128;  Sharpe  v.        nVillings  v.   Consequa,   1  Pet.    (U. 
Thatcher,  2  Dall.  (U.  S.)  11,  1  L.  ed.     S.)  301. 
296. 

683 


684  INDIANA    PROBATE    LAW.  §411 

This  common-law  disability  of  parties  to  testify  in  their  own 
behalf  has  been  removed  by  legislation;  and  while  the  rule  as  to 
competency  established  by  statute  generally  permits  parties  to 
actions  to  testify,  yet  it  has  been  found  necessan'  to  except  from 
the  operation  of  the  statute  all  cases  in  which  one  of  the  parties 
had  died,  became  insane,  or  was  for  any  reason  legally  disquali- 
fied from  testifying.*  The  object  of  such  exceptions  being  ''to 
guard  against  false  testimony  by  the  survivor,  and  in  order  to  do 
this  it  establishes  a  rule  of  mutuality  by  which,  when  the  lips  of 
one  contracting  party  are  closed  by  death,  the  lips  of  the  other 
are  closed  by  the  law.'"^ 

When  this  rule  prevailed  in  Indiana  it  was  held  that  although 
an  administrator  could  not  be  held  personally  liable  for  costs, 
yet  in  relation  to  such  costs,  and  the  liability  of  the  assets  of  the 
estate  in  his  hands  for  their  payment,  he  was  unquestionably 
interested  in  the  subject-matter  of  the  suit,  and  was  therefore  not 
a  competent  witness  in  a  suit  against  the  estate  in  his  case.® 

As  it  has  been  held  that  the  purpose  of  the  various  enabling^ 
statutes,  relieving  the  strictness  of  the  common  law  as  to  the 
competency  of  parties  to  testify,  is  to  increase  the  sources  of 
light  by  which  to  discover  the  truth  of  the  respective  allegations, 
not  to  diminish  them  by  disabling  any  one  who  was  competent  to 
testify  before,  therefore  all  questions  arising  in  connection  with 
the  competency  of  a  party  should  be  determined  and  the  statute 
construed  in  harmony  with  this  principle.^  On  the  other  hand 
the  object  of  the  exception  must  not  be  lost  sight  of,  which  is  to 
avoid  the  injustice  that  might   follow  the  admission   of  testi- 

*  Pendill  v.  Neuberger,  64  Mich.  220,  '  McKay  v.  Riley,  135  111.  586,  26  N. 

31    N.   W.    177;    Hudson   v.    Houser,  E.  525;   Curry  v.  Curry,  114  Pa.  St- 

123  Ind.  309,  24  N.  E.  243 ;  Cowan  v.  367,  7  Atl.  61 ;  Kuhn  v.  Germania  Life 

Musgrave,   IZ    Iowa   384,   35   N.   W.  Ins.  Co.,  71  Mo.  App.  305 ;  Leggett  v. 

496.  Glover,  71  X.  Car.  211;  Strickland  v. 

'Williams  v.  Edwards,  94  Mo.  447,  Wynn,  51   Ga.  600;  Adams  v.  Board 

7  S.  W.  429;  Malady  v.  McEnary,  30  of  Trustees,  Zl  Fla.  266,  20  So.  266; 

Ind.  273.  Sheehan  v.  Hennessey,  65  N.  H.  101, 

'Sinks  V.  English,  3  Blackf.  (Ind.)  18  Atl.  652. 
138. 


§    412  COMPETENCY    OF    WITNESSES.  685 

mony  in  behalf  of  one  whose  adversary  can  neither  contradict, 
•correct,  nor  explain  it.^ 

§  412.  The  rule  in  Indiana. — The  rule  laid  down  in  the 
foregoing  section  as  to  the  competency  of  parties  to  actions  pre- 
vailed for  some  time  in  this  state,  but  in  1861  it  was  abolished, 
and  the  general  rule  now  is  that  all  parties  to  a  civil  action  are 
<:ompetent  witnesses  in  their  own  behalf,  or  in  behalf  of  other 
parties  to  such  action.'' 

But  this  general  rule  has  its  exceptions,  and  among  them  are 
executors,  administrators,  heirs,  devisees,  and  parties  whose  in- 
terests are  adverse  to  a  decedent's  estate/*' 

So  far  as  the  competency  of  an  executor  or  administrator  is 
concerned  in  suits  or  proceedings  involving  matters  which  oc- 
curred during  the  lifetime  of  the  decedent,  the  rule  of  the  com- 
mon law  yet  practically  prevails,  and  the  parties  named  in  the 
Statutory  exceptions  are  incompetent  to  testify  in  the  cases 
therein  mentioned. 

The  object  of  the  legislature  in  making  these  exceptions  to 
the  general  statute  which  gives  parties  to  suits  the  right  to 
testify  therein,  was  to  prohibit  a  party  litigant  from  testifying  in 
his  own  behalf  where  the  other  party  to  the  transaction  is  dead, 
and  therefore  not  available  as  a  witness,  and  thus  permit  the 
robbing  of  estates  by  the  perjury  of  parties  contending  with 
them.^^  The  object  of  these  exceptions  is  to  limit  and  restrain 
the  operation  of  the  general  statute  which  removes  the  disabilities 
of  parties  and  renders  them  competent  witnesses,  and  prevent 
it  from  applying  in  all  suits  where  an  executor  or  administrator 
or  guardian  is  a  party,  and  in  all  suits  by  or  against  heirs. ^" 
And  in  giving  effect  to  these  exceptions  courts  must  give  heed  to 
the  spirit  and  purpose  of  their  enactment  and  not  simply  halt 

•  Meier  v.  Thieman,  90  Mo.  433,  2  S.  "  Upton    v.    Adams,    27    Ind.    432 ; 

W.  435 ;  Kumpe  v.  Coons,  63  Ala.  448.  Martin  v.  Asher,  25  Ind.  237 ;  Jenks  v. 

'Burns'  R.  S.  1908,  §  519;  Coble  v.  Opp,  43  Ind.  108;  Hoadley  v.  Hadley, 

McClintock,  10  Ind.  App.  562,  38  N.  48  Ind.  452. 

E.  74.  "  Ketcham  v.  Hill,  42  Ind.  64. 

"  Burns'  R.  S.  1908,  §§  521,  522,  523, 
526. 


686  INDIANA    PROBATE    LAW.  §    413 

at  the  letter  of  the  statute.  As  Lord  Coke  says :  "He  who  con- 
siders merely  the  letter  of  an  instrument  goes  but  skin  deep  into 
its  meaning."^^ 

It  was  said  in  one  case :  "We  regard  it  as  a  sound  rule  to  be 
applied  in  the  construction  of  these  statutes,  that  they  should  not 
be  extended  beyond  their  letter,  when  the  effect  is  to  add  to  the 
list  of  those  rendered  incompetent.''^^  In  many  of  the  states  the 
incompetency  of  interested  parties  is  limited  to  matters  or  facts, 
the  knowledge  of  which  came  to  them  from  communications  by 
or  transactions  with  the  deceased,  leaving  their  competency  in  all 
other  respect?  unaffected  by  the  exception. ^^ 

§  413.  When  executor  or  administrator  a  party. — The 
first  exception  to  the  general  rule  is  found  in  the  following 
statute :  "In  suits  or  proceedings  where  an  executor  or  admin- 
istrator is  a  party,  involving  matters  which  occurred  during  the 
lifetime  of  the  decedent,  where  a  judgment  or  allowance  may  be 
made  or  rendered  for  or  against  the  estate  represented  by  such 
executor  or  administrator,  any  person  who  is  a  necessary  party  to 
the  issue  or  record,  whose  interest  is  adverse  to  such  estate,  shall 
not  be  a  competent  witness  as  to  such  matters  against  such  estate : 
Provided,  however.  That  in  cases  where  a  deposition  of  such 
decedent  has  been  taken,  or  he  has  previously  testified  as  to  the 
matter,  and  his  testimony  or  deposition  can  be  used  as  evidence 
for  such  executor  or  administrator,  such  adverse  party  shall  be  a 
competent  witness  for  himself,  but  only  as  to  any  matters  em- 
braced in  such  deposition  or  testimony."^*' 

To  be  excluded  as  incompetent  the  witness  must  be  a  necessary 
party  either  to  the  issue  or  the  record,  and  his  or  her  interest 
must  be  adverse  to  the  estate.^^ 

''Clift    V.    Shockley,    11    Ind.    297;  Kroh  v.  Hcins,  48  Xeb.  691,  67  N.  W. 

Goodwin    v.    Goodwin,   48    Ind.    584;  771;   Giles  v.   Wright,   26  Ark.   476; 

Merritt  v.  Straw,  6  Ind.  App.  360,  2sZ  Harrington  v.  Samples,  36  Minn.  200, 

N.  E.  657;  Orndorf  v.  Jeffries,  46  Ind.  30  N.  W.  671. 

App.  254,  91  N.  E.  608.  "  Burns'  R.  S.  1908,  §  521 ;  Zimmer- 

"  St.   John   V.   Lofland,   5   N.   Dak.  man  v.  Beatson,  39  Ind.  App.  664,  79 

140,  64  N.  W.  930.  N.  E.  518,  80  X.  E.  165;  Miedreich  v. 

"Pinney  v.   Orth,   88   N.   Y.   447;  Frye,  41  Ind.  App.  317,  83  N.  E.  752. 

"Walker  v.  Steele,  121  Ind.  436,  22 


§413  COMPETENCY    OF    WITNESSES.  68/ 

The  purpose  of  the  section  is  to  protect  the  estates  of  deceased 
persons  from  the  danger  of  permitting  a  surviving  party  to  a 
contract  or  transaction  to  testify  in  respect  to  it  after  death  has 
closed  the  lips  of  the  other  party.^*  Where  a  party  to  a  con- 
tract or  transaction  is  dead,  and  his  rights  in  the  contract  or 
subject-matter  have  passed  to  another,  who  represents  him  in 
the  action  or  proceeding,  the  true  spirit  of  this  section  excludes 
the  surviving  party  to  the  transaction  from  testifying  in  relation 
to  matters  pertaining  thereto  which  occurred  during  the  lifetime 
of  the  decedent/" 

The  term  party  as  used  in  the  above  statute  means  a  party 
who  has  an  interest  in  the  issue  and  not  merely  a  party  to  the 
record.  A  party  to  the  record  may  not  be  a  party  to  the  issue 
to  be  tried,  in  fact  may  have  no  interest  whatever  in  that  issue. 
Where  such  is  the  case  it  would  perhaps  be  improper  to  ex- 
clude his  evidence;  but  where  the  party  to  the  record  is  inter- 
ested in  the  issue  raised  for  trial  he  would  be  incompetent.^'' 

Where,  in  a  suit  upon  a  claim  against  an  estate,  a  witness 
has  testified  conceming  an  interview  between  the  claimant  and 
the  decedent  the  claimant  is  not  a  competent  witness  to  testify 
to  such  interview  in  rebuttal."^ 

X.  E.  142,  23  N.  E.  271.  In  a  suit  by  165,  9  N.  E.  907;  McConnell  v.  Hunt- 
an  administrator  against  a  husband  ington,  108  Ind.  405,  8  X.  E.  620. 
and  wife  to  set  aside  an  alleged  fraud-  ^  To  render  a  partj^  incompetent  to 
ulent  conveyance,  the  defendants  are  testify  he  must  be  a  necessary  party  to 
not  excluded  from  testifying  in  their  the  issue,  and  not  merely  a  party  to 
own  behalf  that  the  property  sought  the  record.  One  who  disclaims  any 
to  be  reached  was  purchased  with  the  interest  in  the  subject  of  litigation  is 
wife's  money,  and  the  title  taken  in  a  competent  witness.  Starret  v.  Burk- 
the  name  of  the  husband  without  her  halter,  86  Ind.  439;  Spencer  v.  Rob- 
consent,  and  other  matters  relating  to  bins,  106  Ind.  580,  5  X^.  E.  726;  Mar- 
its  purchase  and  improvement,  al-  tin  v.  Martin,  118  Ind.  227,  20  N.  E. 
though  they  occurred  prior  to  the  763  ;Walker  v.  Steele,  121  Ind.  436,  22 
death  of  the  decedent.  Taylor  v.  X.  E.  142,  23  X.  E.  271 ;  Scott  v.  Har- 
Duesterberg,  109  Ind.  165,  9  N.  E.  907.  ris,  127  Ind.  520,  27  X.  E.  150 ;  Sul- 

^*  Durham  v.  Shannon,  116  Ind.  403,  livan  v.  Sullivan,  6  Ind.  App.  65,  Z2 

19  N.  E.  190,  9  Am.  St.  860;  Hudson  X.  E.  1132. 

V.  Houser,  123  Ind.  309,  24  X.  E.  243.  ^  Allen  v.  Jones,  1  Ind.  App.  (^l,  27 

"Taylor   v.    Duesterberg,    109   Ind.  X.  E.  116. 


688  INDIANA    PROBATE    LAW.  §    4^3 

The  statute  only  designs  to  place  both  parties  upon  an  equal 
footing  as  nearly  as  possible,  so  where  a  decedent  has  testified 
or  deposed,  and  his  testimony  or  deposition  can  be  used  in  favor 
of  the  estate,  the  adverse  party  then  is  rendered  competent  to 
testify  as  to  the  matters  embraced  in  such  decedent's  deposition 
or  testimony ;  nor  does  such  competency  depend  upon  whether  or 
not  the  deposition  or  testimony  has  been  introduced  and  actually 
read  in  evidence  on  behalf  of  the  executor  or  administrator.  It 
is  sufficient  if  such  testimony  or  deposition  could  have  been  used 
by  the  estate.  " 

And  where  the  deceased  has  testified  in  his  lifetime  upon  the 
trial  of  a  cause  in  which  he  was  a  party,  if,  upon  a  re-trial  of 
the  cause  after  his  death,  his  testimony  on  the  fonner  trial  is 
used,  the  opposite  party  is  competent  to  testify  as  to  matters  be- 
tween himself  and  such  decedent  upon  the  issues  involved."^ 

The  test  of  competency  does  not  so  much  depend  upon  the 
particular  fact  to  which  an  adverse  party  may  be  called  upon  to 
testify  as  upon  the  subject-matter  of  the  action,  the  contract  or 
matter  involved  in  the  issue.  It  is  said  in  one  case  that  where  an 
administrator  assails  the  title  of  another,  such  title  having  been 
acquired  through  a  third  party  in  a  transaction  to  which  the  dece- 
dent was  a  stranger,  the  parties  to  the  transaction  cannot  be  pre- 
vented from  speaking  in  reference  to  such  matters,  even  though 
they  occurred  during  the  lifetime  of  a  decedent.  A  contract  or 
matter  in  which  the  decedent  never  had  any  concern  or  interest 
during  his  lifetime  cannot  be  so  involved  in  a  suit  by  his  personal 
representative  as  to  preclude  the  parties  interested  in  the  trans- 
action, although  it  may  come  collaterally  in  question,  from  up- 
holding it  by  their  own  testimony.^* 

'^  Where    the    deposition    of    a    de-  administrator  does  not  oflfer  it  in  evi- 

ceased  party,  represented  by  her  exec-  dence,  the  adverse  party  himself  hav- 

utor,  has  been  read  in  evidence,  the  ing  the  right  in  such  case  to  offer  it  to 

other  party  may  testify  upon  all  ma-  show  his  competency.    Coble  v.    Mc- 

terial  points  and  matters  of  fact  em-  Clintock,  10  Ind.  App.  562,  3S  N.  E. 

braced  in  such  deposition.     Hatton  v.  74. 

Jones,  78  Ind.  466.    An  adverse  party  ^  Turpie  v.  Lowe,  158  Ind.  314,  62 

is   a  competent  witness  where   dece-  N.  E.  484,  92  Am.  St.  310. 

dent's  deposition  is  on  file,  though  the  **  Taylor   v.    Duesterberg,    109   Ind. 


413 


COMPETENCY    OF    WITNESSES.  689 


The  Supreme  Court  in  one  case  says :  "Three  things  must  con- 
cur to  exclude  the  testimony  of  the  sur\'iving  adversely  inter- 
ested party:  (i)  The  transaction,  or  the  subject-matter  thereof, 
must  be  in  some  way  directly  involved  in  the  action  or  proceed- 
ing, and  it  must  appear  that  one  of  the  parties  to  the  transaction 
about  to  be  proved  is  dead.  (2)  The  right  of  the  deceased  party 
must  have  passed,  either  by  his  own  act  or  that  of  the  law,  to 
another,  who  represents  him  in  the  action  or  proceeding  in  the 
character  of  executor,  administrator,  or  in  some  other  manner  in 
which  he  is  authorized  by  law  to  bind  the  estate.  (3)  It  must 
appear  that  the  allowance  to  be  made  or  the  judgment  to  be  ren- 
dered may  either  directly  or  indirectly  affect  the  estate  of  the 

decedent.  "■" 

While  it  is  the  duty  of  the  courts  to  carefully  scrutinize  the 
evidence  in  support  of  claims  against  a  decedent's  estate  for  the 
purpose  of  preventing  fraud,  yet  it  must  be  kept  in  mind  that 
the  claimant,  not  being  a  competent  witness,  must  rely  largely 
upon  circumstances  and  the  testimony  of  others  to  prove  his 
claim,  and  if  such  claim  be  fairly  established,  the  court  should 
allow  it.'' 

The  spirit,  not  the  letter,  of  the  statute,  will  be  looked  to  in 
determining  the  competency  of  a  witness.-' 

165,  9  N.  E.  907.  In  an  action  by  an  App.  34,  32  N.  E.  333.  A  claimant 
administrator  to  set  aside  a  transfer  against  an  estate,  where  a  witness  has 
of  a  note  and  mortgage  by  a  decedent,  testified  concerning  an  interview  be- 
and  have  the  same  declared  assets  of  tween  the  claimant  and  the  decedent, 
the  estate,  a  defendant,  a  residuary  cannot  testify,  in  rebuttal,  as  to  what 
legatee,  who  is  not  a  necessary  party  took  place  at  such  interview.  x\llen  v. 
to  the  record,  and  whose  interests  are  Jones,  1  Ind.  App.  63,  27  N.  E.  116; 
not  adverse  to  the  estate,  and  who  Kibler  v.  Potter,  11  Ind.  App.  604,  39 
neither  claims  nor  holds  an  interest  in     X.  E.  525. 

the  note  and  mortgage,  is  a  competent  "'  Merritt  v.  Straw,  6  Ind.  App.  360, 
witness  for  the  defendants.  Walker  33  N.  E.  657;  Nelson  v.  Masterton,  2 
V.  Steele,  121  Ind.  436,  22  X.  E.  142,  Ind.  App.  524,  28  X.  E.  731 ;  Allen  v. 
23  X.  E.  271.  Jones,  1  Ind.  App.  63,  27  N.  E.  116; 

"Durham  v.  Shannon,  116  Ind.  403,  Eppert  v.  Hall,  133  Ind.  417,  31  X.  E. 
19  X.  E.  190.  9  Am.  St.  860;  Goodwin  74,  32  X.  E.  713.  In  an  action  against 
v.  Bentley.  30  Ind.  App.  477,  66  X.  E.  an  administrator  for  the  value  of 
496 ;  Orndorf  v.  Jeffries,  46  Ind.  App.  services  rendered  his  decedent,  the 
254,'  91  X.  E.  608.  claimant  is  not  a  competent  witness  in 

='' Cunningham   v.    Packard,   6   Ind.     her  own  behalf  as  to  matters  occur- 

Pro.  Law. 


690  INDIANA    PROBATE    LAW.  §    41 4 

The  rule  laid  down  in  this  statute  does  not  apply  to  actions 
brought  by  an  administrator  to  recover  damages  for  the  death 
of  his  decedent  where  such  death  is  caused  bv  the  wronerful  act 
of  another.  The  cases  of  Sherlock  v.  Ailing,  44  Ind.  184,  and 
Hudson  V.  Hauser,  123  Ind.  309,  24  X.  E.  243,  to  the  contrary 
on  this  point  being  overruled."® 

§  414.  Same — Adverse  interest. — To  render  a  witness  in- 
competent under  this  statute  he  must  not  only  be  a  necessary 
party  to  the  issue  or  to  the  record,  but  he  must  have  an  interest 
in  the  litigation  adverse  to  the  estate.  The  adverse  interest  nec- 
essary to  disqualify  one  as  a  witness  must  be  a  certain  and  vested 
interest.^" 

This  statute  was  not  intended  to  exclude  the  evidence  of  parties 
whose  interest  is  favorable  to  the  estate.  It  is  only  those  parties 
whose  interest  is  adverse  to  the  estate,  that  the  statute  excludes.^" 

Where,  in  a  suit  by  an  executor  or  administrator  against  sev- 
eral defendants,  one  of  them  suffers  judgment  to  go  against  him 
by  default,  such  defendant  is  then  a  competent  witness  for  his 
co-defendants  in  support  of  issues  made  by  them  in  which  said 
witness  is  not  interested. ^^ 

ring  in  the  decedent's  lifetime.     The  Ind.  App.  315.  52  X.  E.  413:  Ovvings  v. 

fact  that  she  only  testified  in  rebuttal  Jones,  151  Ind.  30,  51  X.  E.  82;  Zim- 

as  to  admissions  proven  to  have  been  merman  v.  Beatson,  39  Ind.  App.  664, 

made  by  her  under  oath,  as  a  witness  79  X.  E.  518,  80  N.  E.  165. 

in  another  cause,  during  the  decedent's  ^°  Sullivan  v.   Sullivan,  6  Ind.  App. 

lifetime,  does  not  render  her  a  com-  65,  32  X.  E.   1132.     The  statute,  dis- 

petent  witness.     Xelson  v.  Masterton,  qualifying  certain  persons  to  testify  to 

2  Ind.  App.  524,  28  X.  E.  731.    A  con-  matters  occurring  during  the  lifetime 

versation  between  a  claimant  against  of  a  decedent  and  affecting  his  estate, 

an  estate  and  one  of  the  heirs,  though  does  not  prohibit  the  plaintiff  in  an 

it  may  have  occurred  in  the  presence  action  of  replevin  brought  against  a 

of    the    testator,    was    not    a    matter  purchaser  at  an  administrator's  sale  to 

which  occurred  with  the  testator  dur-  recover  possession  of  a  horse  sold  as 

ing  his  lifetime,  within  the  meaning  property  of  the  decedent,  from  testi- 

of  the  statute.     Denny  v.  Denny,  123  fying  that  the  decedent  had  made  him 

Ind.  240,  23  N.  E.  519.  a  gift  of  the  animal.  Durham  v.  Shan- 

=*Lake  Erie  &c.  R.  Co.  v.  Charman,  non.  116  Ind.  403,  19  X.  E.  190,  9  Am. 

161  Ind.  95,  67  X.  E.  923.  St.  860. 

"*  Payne    v.    Larter,    40    Ind.    App.  *"  Upton  v.  Adams,  27  Ind.  432.     In 

425,  82  N.  E.  96;  Sloan  v.  Sloan,  21  a  suit  against  the  administrator  of  the 


§    414  COMPETENCY    OF    WITNESSES.  69I 

After  judgment  against  a  principal  maker  of  a  note  he  is  a 
competent  witness  in  a  suit  against  the  personal  representative 
of  a  surety  on  the  note  to  prove  the  fact  that  the  surety  had 
been  discharged  from  liability  by  an  extension  of  time  for  the 
payment  of  the  note.^-  And  where  one  of  several  defendants  has 
filed  a  disclaimer  in  the  action,  and  has  been  adjudged  to  have 
no  interest  in  the  subject-matter  of  the  action,  such  defendant  is 
not  a  party  in  the  meaning  of  the  statute,  and  is  not  disqualified 
to  testify  in  such  action. ^^ 

A  witness  is  not  debarred  from  testifying  in  an  action  against 
a  decedent's  estate  concerning  matters  which  occurred  during 
the  decedent's  lifetime,  simply  because  he  has  an  interest  in  such 
estate.  Such  interest  must  be  adverse  to  the  estate,  and  such 
witness  a  necessary  party  to  the  issue  or  to  the  record.^*  Nor, 
where  the  question  is  one  as  to  the  competency  of  the  witness, 
need  the  party  introducing  such  witness  state  what  he  expects 
to  prove  by  him.^^  In  a  suit  against  the  estate  of  a  decedent  for 
contribution  by  one  surety  who  had  paid  the  note,  a  co-surety, 

principal  debtor  and  his  sureties,  the  allowance  bj-  the  court  is  incompetent 
plaintiff  might  testify  for  himself,  un-  to  testify  as  to  the  justness  of  the 
der  the  statute,  if  the  administrator  claim  or  the  amount  due  thereon, 
consented.  The  sureties  could  not  ob-  Clift  v.  Shocklej-,  11  Ind.  297.  In  an 
ject  in  such  case.  Ferguson  v.  State,  action  by  an  executrix  upon  a  contract 
90  Ind.  Z%.  Under  the  act  of  March  made  with  her  testator  by  the  defend- 
15,  1879,  a  plaintiff,  being  incompe-  ant,  the  latter  is  not  a  competent  wit- 
tent  as  a  witness,  could  not  call  as  a  ness.  Hanlon  v.  Doherty,  109  Ind.  Zl, 
witness  a  defendant  who  had  a  com-  9  X.  E.  782.  Where  the  plaintiff 
mon  interest  with  the  plaintiff,  ad-  stands  as  the  representative  of  her 
verse  to  other  defendants.  Cupp  v.  mother,  deceased,  one  of  the  contract- 
Ayers,  89  Ind.  60.  ing  parties,  the  defendant,  the  other 
^  Starret  v.  Burkhalter,  86  Ind.  439.  contracting  part}%  is  not  a  competent 
*^  Martin  v.  Martin,  118  Ind.  227,  20  witness  to  testify  as  to  matters  which 
N.  E.  l(ih ;  Spencer  v.  Robbins,  106  occurred  between  him  and  the  def end- 
Ind.  580.  5  X.  E.  726.  ant  during  her  lifetime,  concerning 
•*  Sullivan  v.  Sullivan,  6  Ind.  App.  the  contract  in  dispute.  Reddick  v. 
65,  Z2  X.  E.  1132.  Where  exceptions  Keesling,  129  Ind.  128,  28  X.  E.  316. 
to  a  report  of  an  administrator  have  ^  Sullivan  v.  Sullivan,  6  Ind.  App. 
been  filed,  a  claimant  to  whom  the  ad-  65,  Zl  X'.  E.  1132. 
ministrator  has  paid  a  claim  without 


692 


INDIANA    PROBATE    LAW 


s  414 


although  not  a  party  to  the  suit,  is  not  a  competent  witness 
as  to  the  question  of  suretysliip.^" 

One  may  be  both  a  party  to  the  issue  antl  a  party  to  the  record 
and  yet  not  have  an  interest  in  the  Htigation  adverse  to  the  estate. 
The  party  in  such  case  is  a  competent  witness  for  the  estate,'^ 
It  is  not  interest  alone  that  disqualifies  one.  If  the  interest  lay 
in  the  direction  of  protecting  the  estate,  such  interest  does  not 
render  the  witness  incompetent.^^ 

Tlie  statute  in  terms  disqualifies  only  those  who  are  necessary 
parties  to  the  issue  or  record,  whose  interest  is  adverse  to  the 
estate,  but  in  determining  the  competency  of  a  witness,  the  ac- 
cepted rule  is  not  to  regard  the  mere  letter  of  the  statute,  but  to 
look  to  its  spirit  and  purpose.  It  is  not,  therefore,  absolutely 
essential  to  the  disqualification  of  the  witness  that  he  be  a  party 
to  the  action.^"     Xor  can  it  be  said  that  simply  because  a  person 


^  In  a  suit  by  the  payee  of  a  note 
against  the  executor  of  the  surety,  the 
principal  maker  of  the  note  was  a 
competent  witness,  under  the  statute 
in  force  prior  to  1881,  to  prove  that 
the  surety  had  been  discharged  by  giv- 
ing time;  but,  in  such  case,  the  payee 
was  not  a  competent  witness  for  him- 
self, unless  required  by  the  court  to 
testify.  Starret  v.  Burkhalter,  86  Ind. 
439.  In  an  action  by  an  administrator 
against  the  payor  of  a  note  executed 
to  the  decedent,  such  payor  is  not  a 
competent  witness  to  testify  to  the 
genuineness  of  the  decedent's  signa- 
ture to  a  paper  claimed  to  be  genuine, 
to  be  used  to  show  by  comparison  the 
genuineness  of  decedent's  signature  to 
a  receipt  of  payment  of  said  note. 
Merritt  v.  Straw,  6  Ind.  App.  360,  32 
N.  E.  657.  In  a  suit  against  the  maker 
upon  a  note  lawfully  sold  by  the  ad- 
ministrator of  the  deceased  payee  to 
the  plaintiff,  the  defendant  is  not  a 
competent  witness  in  his  own  behalf. 
Reynolds  v.  Linard,  95  Ind.  48.  In  an 
action  on  a  claim  against  a  decedent's 


estate,  wherein  the  claimant  alleged 
that  he,  as  surety  for  the  decedent, 
was  compelled  to  pay  the  amount  due 
on  a  certain  note,  the  note,  which  was 
introduced  in  evidence,  purporting  to 
have  been  executed  as  the  joint  and 
several  obligation  of  all  the  makers,  i. 
c,  the  decedent,  the  claimant  and 
one  A,  A  is  incompetent  as  a  witness 
to  testify  as  to  the  question  of  prin- 
cipal and  suretyship  in  such  trans- 
action, A's  interest  in  the  controversy 
being  adverse  to  that  of  the  estate, 
and  the  mere  fact  that  A,  at  the  time 
of  the  trial,  was  insolvent,  does  not 
strip  him  of  such  interest.  Thorn- 
burg  v.  Allman,  8  Ind.  App.  531,  35  X. 
E.  1110. 

^^  Cincinnati  &c.  R.  Co.  v.  Cregor, 
150  Ind.  625,  50  N.  E.  760. 

^  Lewis  V.  Buskirk,  14  Ind.  App. 
439,  42  N.  E.  1118;  Orndorf  v.  Jef- 
fries, 46  Ind.  App.  254,  91  N.  E.  608. 

**  Leach  v.  Dickerson,  14  Ind.  App. 
375,  42  N.  E.  1031 ;  Toner  v.  Wagner, 
158  Ind.  447,  63  N.  E.  859.  In  the  first 
case  the  court  say:     "The   incompe- 


§  414 


COMPETENCY    OF    WITNESSES. 


693 


has  an  interest  in  the  resuh  of  the  suit  that  he  is  a  party  to  the 
issue.*"  The  term  "party"  used  in  the  statute  means  a  party  to 
the  issue,  and  not  merely  a  party  to  the  record.  A  person  is  not 
incompetent  as  a  witness  simply  because  he  may  be  a  party  to 
the  record,  but  it  must  appear  that  he  has  some  interest  in  the 
result  of  the  suit  in  common  with  the  party  calling  him.  If  he 
has  such  interest  and  he  is  called  by  a  party  adverse  to  the  estate 
he  is  not  competent  as  a  witness.*^ 

The  incompetency  of  a  witness  under  this  statute  extends  only 
to  matters  which  occurred  during  the  lifetime  of  the  decedent. 
As  to  matters  accruing  after  his  death  the  parties  to  the  action  are 
competent  to  testify.*^    It  being  said  in  one  case  that :    'Tt  is  clear 


tcncy  of  the  witness  is  not  by  reason 
of  the  express  letter  of  the  statute, 
but  it  arises  from  the  efforts  of  the 
courts  to  administer  the  law  with  due 
regard  to  the  rights  of  estates.  In  giv- 
ing effect  to  the  spirit  of  the  law  the 
incompetency  is  created.  We  can  see 
no  good  reason,  therefore,  why  the 
incompetency  should  be  extended  any 
further  than  is  requisite  to  give  force 
and  effect  to  the  real  spirit  and  pur- 
pose of  the  statute  which  is  to  protect 
estates  from  unjust  claims  proven  by 
the  evidence  of  those  who  are  testify- 
ing in  their  own  interest." 

*"  Michigan  Trust  Co.  v.  Probasco, 
29  Ind.  App.  109,  63  N.  E.  255 ;  Bis- 
chof  V.  Mikels,  147  Ind.  115,  46  N.  E. 
348.  It  being  said  in  one  case  that 
"in  a  suit  by  an  administrator  to  col- 
lect assets  belonging  to  the  estate,  the 
legatees  or  distributees  are  not  neces- 
sary parties  to  the  issue  or  the  record. 
It  is  true  a  legatee  may  have  an  inter- 
est in  the  result  of  the  suit,  and  that 
interest  may  be  adverse  to  such  estate, 
but  that  does  not  make  him  a  neces- 
sary party  to  the  issue.  The  same 
reasoning  that  would  make  him  a 
necesary  party  would  make  each  cred- 
itor of  the  estate  a  necessary  party  to 


the  issue,  and  incompetent  as  a  wit- 
ness. Parties  to  the  issue  must  mean 
the  parties  between  whom  there  is  a 
controversy  submitted  to  the  court  for 
trial;  the  parties  who  are  litigating 
the  particular  controversy,  and  against 
one  of  whom,  and  in  favor  of  the 
other,  the  court  will  render  a  judg- 
ment or  decree." 

■"  Sloan  v.  Sloan,  21  Ind.  App.  315, 
52  N.  E.  413. 

*^  Zimmerman  v.  Beatson,  39  Ind. 
App.  664,  79  N.  E.  518,  80  N.  E.  165. 
"If  David  Bowers  were  living,  and  the 
question  of  his  possession  of  such 
property  were  being  then  litigated,  as 
it  now  is,  said  appellees  might  testify 
exactly  as  they  did  in  the  trial,  and, 
in  the  absence  of  other  evidence,  a 
finding  that  there  was  no  such  prop- 
erty might  be  made,  but  the  decedent 
alive  could  also  testify  relative  to  oc- 
currences detailed  by  them,  and  his 
statement  added  thereto  might  make 
a  much  different  question  from  that 
presented  in  his  absence.  The  matters 
testified  to  occurred  during  the  life- 
time of  the  decedent,  and  the  neces- 
sary conclusion  is  that  the  statute  ren- 
dered the  witnesses  incompetent." 


694  INDIANA    PROBATE   LAW.  §    4-5 

from  the  language  used  that  the  legislature  had  in  view  suits 
where  one  of  the  parties  only  was  an  executor  or  administrator, 
and  the  matters  involved  occurred  during  the  lifetime  of  the  de- 
cedent whom  the  particular  executor  or  administrator  repre- 
sents."" 

If  one  estate  is  prosecuting  a  claim  against  another  estate  the 
rule  of  adverse  interest  does  not  apply.  Both  parties  being  dead, 
the  reason  for  the  rule  is  gone.** 

§  415.  In  case  of  joint  interest. — Where  the  real,  or  sub- 
stantial contracting  party  on  one  side  is  dead,  though  others,  who 
are  only  nominal  parties,  survive,  the  other  party  cannot  testify." 

But  where  a  contract  is  made  by  one  with  several  parties  jointly, 
each  of  whom  being  as  deeply  interested  as  the  others,  the  death 
of  one  of  them  does  not  disqualify  the  plaintiff,  in  a  suit  against 
them,  because  the  living  co-defendants  are  competent  to  testify 
against  him,*"  yet  if  the  contract,  though  it  affect  several  was 
made  by  or  with  one  in  behalf  of  himself  and  the  others,  the 
death  of  the  one  acting  for  them  renders  the  other  party  to  the 
contract  incompetent.*^  And  surviving  partners  are  not  compe- 
tent witnesses  for  each  other  to  prove  the  terms  of  a  contract 
made  by  a  deceased  partner  for  their  benefit.*^  It  is  held  that 
a  surviving  partner  is  not  a  competent  witness  against  the  estate 
of  a  deceased  partner  to  recover  for  goods  sold,  to  prove  the 

"Michigan  Trust  Co.  v.  Probasco,  W.  47;   Leach  v.   Dickerson,   14  Ind. 

29  Ind.  App.  109,  63  N.  E.  255;  Upton  App.  375,  42  N.  E.  1031.    In  an  action 

V.  Adams,  27  Ind.  432.  against  the  estate  of  a  deceased  part- 

**  Sloan  V.  Sloan,  21  Ind.  App.  315,  ner  for  a  debt  due  by  a  firm,  the  sur- 

52  N.  E.  413;  Orndorf  v.  Jeflfries,  46  viving  partner  is  an  interested  party 

Ind.  App.  254,  91  N.  E.  608.  and  cannot  testify.    Giesecke  Boot  &c. 

^'Messimer    v.    McCray,    113    Mo.  Co.  v.  Seevers,  85  Iowa  685,  52  N.  W. 

382,  21  S.  W.  17.  555.    And  so,  where  a  person  deposits 

"Wiley  V.  Morse,  30  Mo.  App.  266;  money  in  the  joint  name  of  himself 

McGehee  v.  Jones,  41  Ga.  123.  and  another,  under  a  stipulation  that 

"Stanton    v.    Ryan,    41    Mo.    510;  either,  or  the  survivor,  may  draw  the 

Dean  v.   Wamock,  98   Pa.    St.   565;  fund,  the  claim  of  such  other  person 

Harris  v.  Bank,  22  Fla.  501,  1  So.  140,  after  the  owner's  death  is  adverse  to 

1  Am.  St.  201.  the   owner   and   the   claimant   is   not 

**Hook  V.  Bixby,  13  Kan.  164;  God-  competent  to  prove  a  gift.     Flanagan 

frey  v.  Templeton,  86  Tenn.  161,  6  S.  v.  Nash,  185  Pa.  St.  41,  39  Atl.  818. 


§    4l6  COMPETENCY   OF    WITNESSES.'  695 

partnership,  its  duration  or  time  of  dissolution,  or  to  fix  any  lia- 
bility against  the  estate  of  the  deceased  partner,  but  he  may 
testify  to  the  purchase  of  the  goods,  and  that  the  price  remains 
unpaid.*® 

The  statute  is  not  directed  against  the  proving  of  relevant  and 
material  matters  which  occurred  during  the  lifetime  of  the  dece- 
dent, but  it  renders  a  person  of  the  class  therein  designated  in- 
competent to  testify  as  to  such  matters  against  the  estate.  The 
objection  does  not  go  to  the  evidence  itself,  but  to  the  person, 
the  incompetent  witness.^"  For  this  reason  the  rule  of  the  statute 
is  not  applicable  in  a  suit  against  a  surviving  partner  and  the 
sureties  on  a  bond  of  the  firm,  no  recovery  being  sought  against 
the  estate  of  the  deceased  partner.^^ 

If  a  note  executed  by  a  decedent  and  another  person  is  filed  as 
a  claim  against  the  estate  of  such  decedent,  the  maker  of  the 
note  who  joined  with  the  decedent  in  its  execution  is  not  compe- 
tent to  prove  that  the  decedent  signed  the  note." 

§  416.  As  to  admissions  and  declarations. — The  admissions 
of  a  decedent  against  his  own  interest  may  be  proven  in  actions 
against  his  estate,  it  being  said  that  "where  admissions  are 
made  by  a  party  against  his  own  interest,  it  is  not  material 
whether  they  were  or  were  not  a  part  of  the  res  gestse,  for  self- 
disserving  declarations  are  always  competent  against  the  party 

*•  Leach  v.  Dickerson,  14  Ind.  App.  685,  52  N.  W.  555 ;  Hurlbut  v.  Meeker, 

375,  42  X.  E.  1031.    "If  the  purchase  104  111.  541 ;  Hogeboom  v.  Gibbs,  88 

was  the  individual  act  of  the  witness,  Pa.  St.  235;  Cooper  v.  Wood,  1  Colo, 

and  there  was  then  no  partnership,  he  App.  101,  27  Pac.  884;  Hunter  v.  Her- 

was   personally   liable   for  the   entire  rick,  Id  Hun.  (N.  Y.)  272." 

debt.     If,  on  the  other  hand,  the  de-  "Gilbert  v.   Swain's  Estate,  9  Ind. 

ceased  was  then  a  partner,  a  portion  App.  88,  Zd  N.  E.  374 ;  Allen  v.  Jones, 

of  the  burden  would  be  imposed  upon  1  Ind.  App.  63,  27  N.  E.  116;  Sullivan 

him,  and  thus  practically  transferred  v.  Sullivan,  6  Ind.  App.  65,  32  N.  E. 

from   the   shoulders   of  the  witness;  1132. 

that  the  witness  was  as  to  all  matters  "  Hines    v.    Consolidated    Coal   &c. 

relating  to  the  existence  of  partner-  Co.,  29  Ind.  App.  563,  64  N.  E.  886. 

ship,  adverse  in  interest  to  the  estate,  "  Bowen   v.   O'Hair,   29   Ind.   App. 

is,  in  our  opinion,  quite  clear.     Gie-  466,  64  N.  E.  €12. 
secke  Boot  &c.-Co.  v.  Seevers,  85  Iowa 


696  INDIANA    PROBATE    LAW.  §    416 

by  whom  they  were  made,  whether  accompanying  any  act  or 
not."" 

The  admissions  of  an  executor  or  administrator  may  also  be 
shown.  Such  admissions  are  not  conclusive,  but  like  admissions 
made  by  parties  to  an  action,  they  are  competent.  An  executor 
or  administrator  may  be  said,  in  some  sense,  to  step  into  the  shoes 
of  the  deceased.  He  represents  the  deceased  in  respect  to  his 
personal  estate  and  his  admissions  are  competent  evidence  against 
the  estate  he  represents.  His  adrnissions  are  also  competent  evi- 
dence when  the  estate  is  represented  by  his  successor  in  the  ad- 
ministration.^* 

As  one  writer  puts  it,  "The  executor  or  administrator  is  bound 
by  the  admissions  of  the  deceased  in  regard  to  all  property  in  the 
ownership  of  which  he  is  in  privity  with  the  deceased,  on  the 
principle  that  when  a  party,  by  his  admissions,  has  qualified  his 
own  right,  and  another  succeeds  to  his  claim  as  executor  or 
administrator,  he  succeeds  only  to  the  right  thus  qualified  at  the 
time  when  his  title  commenced.  And  the  executor  or  administra- 
tor may,  by  his  own  admissions,  bind  the  estate  which  he  repre- 
sents, but  only  after  he  has  become  fully  clothed  with  the  trtist."" 

The  admissions  made  by  a  decedent  while  in  possession  of 

°^  Clouscr  V.  Ruckmon.  104  Iiul.  588,  on   the   part  of  the   deceased   to   the 

4  X.  E.  202;  Slade  v.  Leonard,  75  Ind.  plaintiff,  while  she  was  such  executrix. 

171;   1   Greenleaf  Ev.,  §   189;   1   Best  She    died,    and    an    administrator    de 

Ev.,  §  500.  bonis  non  was  appointed.     In  a  suit 

"Eckert  v.  Triplett,  48  Ind.  174,  17  by  the  plaintiff  against  the  adminis- 

Am.    Rep.   735;    Faunce   v.    Gray,   21  trator  de  bonis  non,  the  admissions  of 

Pick.    (j\Iass.)    243.     "The    estate    is  the    executri.x    were    held    competent, 

equally    affected    by    the    admission,  The    court    said:     "Such    admissions, 

whether  the  subject-matter  of  it  arise  made  in  good  faith  while  she  repre- 

in  a  suit  where  the  same  executor  or  sented  the  estate,  and  had  an  interest 

administrator  is  a  party,  or  in  a  suit  in  the  matter,  are  evidence  to  charge 

where  a  successor  in  the  administra-  the  estate.    We  see  no  reason  against 

tion  is  a  party.     The  direct  authori-  it,  and  the  admission  of  the  former 

ties  upon  this  point  are  not  numerous,  executrix  must,   on   principle,  be   re- 

Indeed,   we   are    aware   of   only   one  garded  as  effectual  to  charge  the  es- 

American  case  exactly  in  point.    That  tate,  as  if  made  by  the  administrator 

is   the  case   of   Lashlee   v.   Jacobs,  9  de  bonis  non." 

Humph.  (Tenn.)  718.     There,  an  exec-  "  Croswell,  Extrs.  &  Admrs.,  547. 
utrix   had   admitted   an   indebtedness 


§    4^6  COMPETENCY    OF    WITNESSES.  697 

property,  as  to  the  character  in  which  he  held  such  property,  are 
competent  evidence  against  his  heirs  or  personal  representatives.^*' 

A  decedent's  declarations  as  to  an  indebtedness  owing  by  him 
are  admissible  against  his  estate  and  in  favor  of  a  claim  filed  on 
such  debt."  The  rule  being  that  a  party's  declarations  are  ad- 
missible against  him  or  his  representative,  but  cannot  be  shown 
by  or  in  favor  of  either.^* 

But  there  is  an  exception  to  this  rule  it  is  well  enough  to  note, 
that  is  when  declarations,  qualifying  and  giving  character  to  an 
act  proper  to  be  given  in  evidence,  accompany  that  act,  such 
declarations  are  admissible,  whether  self-serving  or  not,  because 
they  are  a  part  of  the  res  gestae.^^  It  is,  however,  not  always  easy 
to  determine  when  declarations  having  reference  to  the  act  or 
transaction  should  be  received  as  part  of  the  res  gestae,  and  courts 
have  had  much  difficulty  in  their  efforts  to  formulate  general 
rules  applicable  to  the  subject.  Our  own  Supreme  Court  has  laid 
down  the  following,  which  perhaps  is  as  good  as  any :  "This 
much  may,  however,  be  safely  said,  that  declarations  which  were 
the  natural  emanations  or  outgrowth  of  the  act  or  occurrence  in 
litigation,  although  not  precisely  concurrent  in  point  of  time,  if 
they  were  yet  voluntarily  and  spontaneously  made  so  nearly  con- 
temporaneous as  to  be  in  the  presence  of  the  transaction  which 
they  illustrate  and  explain,  and  were  made  under  such  circum- 

'"'  Vanduyn  v.  Hepner,  45  Ind.  589.  person,  in  an  action  brought  against 

"  Slade    V.    Leonard,    75    Ind.    171.  him  by  the  heir.     1  Greenl.  Evidence, 

"  'The  declarations  of  an  intestate  are  §  189.     So,  in  an  action  against  heirs 

admissible   against   his   administrator,  for  the  recovery  of  real  estate,  when 

or  any  other  claiming  in  his  right.'     1  the  statute  of  limitations  is  pleaded,  it 

Greenl.   Evidence,   §    189;    Wilcox  v.  is  competent  to  prove  the  admissions 

Duncan,  3  Ind.  146;  Bevins  v.  Cline's  of  the  ancestor  that  he  held  the  same 

Adm'r.,  21  Ind.  37;  Denman  v.  Mc-  as  tenant  of  the  plaintiff,  and  not  as 

Mahin,  37  Ind.  241.     The  admissions  owner.     Vanduyn  v.  Hepner,  45  Ind. 

of   a    former   administrator,   touching  589." 

the  matter  in  controversy,  are  admis-  '' Bristor   v.    Bristor,   82    Ind.    276; 

sible    against    the    administrator    de  Wetzel  v.  Kellar,  12  Ind.  App.  75,  39 

bonis  non.    Eckert  v.  Triplett,  48  Ind.  N.  E.  895 ;  Brown  v.  Kenyon,  108  Ind. 

174,  17  Am.  Rep.  735.     The  declara-  283,  9  N.  E.  283. 

tions  of  an  ancestor,  that  he  held  the  ^  McConnell  v.  Hannah,  96  Ind.  102 : 

land  as  tenant  of  a  third  person,  are  Creighton    v.    Hoppis,    99    Ind.    369; 

admissible  to  prove  the  seizin  of  that  Downs  v.  Lyman,  3  N.  H.  486. 


698  INDIANA    PROBATE   LAW.  §416 

Stances  as  necessarily  to  exclude  the  idea  of  design  or  delibera- 
tion, must,  upon  the  clearest  principle  of  justice,  be  admissible 
as  a  part  of  the  act  or  transaction  itself."""  And  it  was  there- 
fore held  that,  in  an  action  by  an  administrator  for  an  injury 
causing  death,  the  declarations  of  the  decedent  made  within  a 
few  minutes  after  the  injury  was  sustained,  and  while  he  yet 
remained  in  the  presence  of  the  cause  of  the  injury,  were  admis- 
sible as  a  part  of  the  res  gestae." 

The  correct  rule,  as  laid  down  by  the  authorities,  is:  "The 
decedent's  admissions  and  declarations  are  not  competent  in 
favor  of  the  representative,  unless  some  rule  of  evidence  would 
admit  them  in  favor  of  the  decedent,  if  living,  as,  for  instance, 
where  they  were  part  of  the  res  gestae  of  an  act  properly  in  evi- 
dence.""' 

In  an  action  by  a  claimant  he  is  not  a  competent  witness  in 
his  own  behalf  in  rebuttal  of  admissions  proved  to  have  been 
made  by  him  to  the  decedent."^ 

And  in  an  action  by  an  administrator  de  bonis  non  to  recover 
the  value  of  certain  personal  property  sold  by  his  intestate,  proof 
by  the  defendant  of  admissions  made  by  a  former  administrator 
of  the  estate  that  payment  had  been  made  to  him  by  such  defend- 
ant, was  held  to  be  competent  evidence  and  properly  admitted."* 

But  where,  on  the  trial  of  a  claim  against  an  estate,  the  claim- 
ant has  proven  statements  of  the  deceased  in  his  lifetime  ac- 

"«  Louisville  &c.  R.  Co.  v.  Buck,  116  Ind.  566,  19  N.  E.  453,  9  Am.  St.  883, 

Ind.  566,  19  N.  E.  453,  9  Am.  St.  883,  2  L.  R.  A.  520n. 

2  L.  R.  A.  520n ;  Toledo  &c.  R.  Co.  v.  "  Abbott  Trial  Ev.,  60 ;  Doe  v.  Rea- 

Goddard,  25  Ind.  185 ;  Commonwealth  gan,    5    Blackf.    (Ind.)    217,   33   Am. 

V.   MTike,  3  Cush.    (Mass.)    181,  SO  Dec.  466;  Hamilton  v.  State,  36  Ind. 

Am.    Dec.   727 ;    Augusta   Factory   v.  280,  10  Am.  Rep.  22n ;  Howe  v.  Yopst, 

Barnes,  72  Ga.  217,  53  Am.  Dec.  838;  20  Ind.  409;  Ghormley  v.  Young,  71 

Insurance  Co.  v.  Mosley,  8  Wall.  (U.  Ind.  62;  Baker  v.  Gausin,  76  Ind.  317; 

S.)  397.  19  L.  ed.  437;  People  v.  Simp-  Kenney  v.  Phillipy,  91  Ind.  511. 

son,   48    Mich.    474,    12    N.    W.   662;  ''Bishop    v.    Welch,    35    Ind.    521; 

Kirby  v.  Commonwealth,  77  Va.  681,  Williams  v.  Allen,  40  Ind.  295;  Fro- 

46  Am.  Rep.  747 ;  State  v.  Koran,  32  maji  v.  Rous,  83  Ind.  94. 

Minn.  394.  "  Eckert  v.  Triplett,  48  Ind.  174,  17 

«^  Louisville  &c.  R.  Co.  v.  Buck,  116  Am.  Rep.  735;  Lashlee  v.  Jacobs,  9 

Humph.  (Tenn.)  718. 


§417  COMPETENCY    OF    WITNESSES.  699 

knowledging  the  debt  in  suit  as  his  own,  the  administrator  will 
not  be  permitted  to  prove  contrary  statements  made  by  such 
decedent.''^ 

The  parties  may  be  called  as  to  a  transaction,  and  they  may  be 
impeached  by  proof  of  inconsistent  statements,  but  such  state- 
ments cannot  be  introduced  in  the  form  of  admissions.*'*' 

§  417.  Cases  in  which  statute  does  not  apply. — It  does  not 
prevent  a  plaintiff,  in  an  action  in  replevin,  brought  against  one 
who  purchased  property  at  an  administrator's  sale,  to  recover 
property  sold,  from  testifying  that  such  property  was  a  gift  to 
him  from  the  decedent.*''^ 

In  a  suit  by  an  administrator  against  a  husband  and  wife  to 
set  aside  an  alleged  fraudulent  conveyance,  the  defendants  are 
competent  witnesses  to  show  that  the  land  was  held  by  the  hus- 
band in  trust  for  his  wife  by  reason  of  having  purchased  it  with 
her  money,  and  having  taken  the  title  in  his  own  name  without 
her  consent,   such  transaction  not  being  the  subject-matter  of 

the  suit.**' 

In  action  on  a  claim  against  an  estate,  based  upon  a  note  which 
is  alleged  to  be  lost,  after  evidence  to  prove  the  existence  of  the 
note,  and  that  it  belonged  to  the  claimant,  such  claimant  is  a  com- 
petent witness  to  show  the  loss  of  the  note.*'^ 

A  conversation  between  a  claimant,  in  a  suit  upon  the  claim 
against  an  estate,  and  one  of  the  heirs,  although  such  conver- 

«» Foster  v.  Honan,  22  Ind.  App.  252,  were  made  by  the  mortgagor,  and  a 

53  N   E  667  receipt  signed  by  him  acknowledgmg 

-Zimmerman   v.    Beatson,    39   Ind.  the  receipt  of  three  hundred  and  fifty 

App  664  79  N  E.  518.  80  N.  E.  165.  dollars,  January  11,  1866,  havmg  been 

-Durham  v.  Shannon,  116  Ind.  403,  admitted  in  evidence,  the  mortgagee 

19  N   E   190  9  Am.  St.  860.  was  not  competent,  under  acts  1867,  p. 

-Taylor   v.    Duesterberg,    109   Ind.  225,  §  2,  to  testify  that  the  receipt  was 

165  9  N   E  907  given  for  two  payments,  one  Decem- 

-Miiam  V.  Milam,  60  Ind.  58.  On  ber  26,  1865,  for  fifty  dollars  and  the 
the  trial  of  an  action  against  the  heirs  other  January  6,  1866  for  three  hun- 
of  an  intestate,  to  foreclose  a  mort-  dred  dollars,  indorsed  on_  the  mort- 
gage given  by  him  to  secure  a  note,  gage  by  the  intestate  and  given  m  evi- 
it  appearing  from  the  evidence  that  dence  by  the  plaintiff.  Abshire  v. 
the  note  was  lost,  and  that  the  indorse-  Williams,  Id  Ind.  97. 
ments  of  payments  on  the  mortgage 


700  INDIANA  PROBATE  LAW.  §  41/ 

sation  took  place  in  the  presence  of  the  decedent,  is  admissible.^" 
It  not  being,  within  the  meaning-  of  the  statnte,  a  matter  occur- 
ring in  the  lifetime  of  the  decedent. 

In  a  suit  upon  a  contract  with  the  executor  or  administrator, 
the  statute  does  not  apply,  and  either  party  is  a  competent  wit- 
ness." But  where  the  administrator  sues  upon  a  contract  made 
with  his  decedent  the  defendant  is  not  a  competent  witness.'" 
And  under  a  fonner  statute  neither  was  the  executor  or  admin- 
istrator."    But  now  he  is  not  disqualified  by  the  statute. 

Where  the  estate  of  a  decedent  is  found  to  be  of  less  than 
five  hundred  dollars  in  value,  and  is  given  to  the  widow  under 
the  statute,  in  a  suit  brought  by  her  upon  a  note  payable  to  the 
decedent,  the  defendant  is  not  incompetent  to  testify  in  his  own 
behalf.'* 

Where  exceptions  have  been  filed  to  the  accounts  of  an  ad- 
ministrator by  heirs,  and  no  judgment  can  be  rendered  on  such 
exceptions  either  for  or  against  the  estate,  and  the  assets  of 
the  estate  will  neither  be  increased  or  diminished  as  a  result  of 
such  suit,  the  administrator  is  a  competent  witness  in  his  own 
behalf;'^  but  where  the  result  of  a  judgment  on  such  exceptions 
would  be  otherwise  such  administrator  would  not  be  a  competent 
witness.'^® 

An  executor  or  administrator  under  the  old  statute  was  not 

'*  Denny  v.  Denny,  123  Ind.  240,  23        "  Hanlon  v.  Doherty,  109  Ind.  2>7,  9 

N.  E.  519.  X.  E.  782. 

•'Voiles    V.    Voiles,    51    Ind.    385.        •"•  Thorn  v.  Wilson,  24  Ind.  323.    In 

Where,   in  an   action  against   A,  the  a  suit  upon  the  relation  of  a  county 

principal,  on  a  promissory  note,  and  auditor   to    foreclose    a   school    fund 

B,  a  surety,  and  the  estate  of  C,  an-  mortgage  executed  during  his  term  of 

other   surety,   the   plaintiff   was   per-  office,  the  relator  is  not  a  party  in  in- 

mitted  to  testify  generally  in  her  own  terest  within  the  meaning  of  the  stat- 

behalf  and  against  all  the  defendants,  ute  prohibiting  parties  from  testifying 

and  the  court  refused  to  instruct  the  as  witnesses  where  heirs  or  adminis- 

jury  to  disregard  the  plaintiff's  testi-  trators  are  parties.     Works  v.   State, 

mony  as  affecting  the  decedent's  es-  120  Ind.  119,  22  N.  E.  127. 
tate,  such  action  constituted   reversi-        '*  Walker  v.  Clifford,  21  Ind.  123. 
ble  error  as  to  the  estate.    Eppert  v.        "  Hamlyn  v.  Nesbit,  37  Ind.  284. 
Hall.  133  Ind.  417,  31  X.  E.  74;  32  N.        '"Goodwin  v.  Goodwin,  48  Ind.  584. 
E.  713. 


§4^7  COMPETENCY   OF   WITNESSES.  70I 

a  competent  witness  in  an  action  on  a  claim  against  the  estate 
he  represents,  for  board  and  services  rendered  the  decedent  in  his 
lifetime." 

The  mother  is  a  competent  witness  in  a  prosecution  for  bas- 
tardy against  the  administrator  of  the  reputed  father  of  her 
child." 

Where  an  action  has  been  brought  by  the  administrator  of  a 
deceased  partner  against  the  surviving  partner  for  a  settlement 
of  the  partnership  accounts,  the  sun'iving  partner  is  not  a  compe- 
tent witness.  "^ 

Where  no  objection  is  made  to  an  incompetent  witness  testi- 
fying in  a  case,  and  no  motion  is  made  to  strike  out  his  testimony, 
the  objection  to  it  will  be  considered  waived.^" 

Where  the  widow  sues  the  administrator  of  her  husband's 
estate  for  her  distributive  share  thereof  she  is  a  competent  wit- 
ness.^^ 

The  widow  of  a  decedent  is  a  competent  witness  to  testify  to 
conversations  and  statements  made  by  her  husband  to  others 
in  her  presence,  relating  to  transactions  between  her  husband  and 
others ;  but  she  is  not  a  competent  witness  to  testify  as  to  state- 
ments made  to  her  by  her  husband.*" 

In  a  proceeding  to  remove  an  administrator  for  allowing  and 
paying  a  claim,  the  claimant  is  a  competent  witness  upon  the 
question  of  the  validity  of  the  claim. ®^ 

The  widow  of  a  decedent  is  not  barred  from  testifying  as  to 
declarations  made  by  her  to  the  administrator  of  her  husband's 
estate.** 

The  statute  does  not  affect  the  competency  of  heirs  or  legatees 

"  Ginn  v.  Collins,  43  Ind.  271.  her  share  of  the  fund  which  remains 

"  State  V.  Han,  23  Ind.  539.  in    his    hands    for    distribution,    the 

™  Skillen  v.  Jones,  44  Ind.  136.  widow  is  a  competent  witness.     Sher- 

^  Denbo  v.  Wright,  53  Ind.  226.  wood  v.  Thomasson,  124  Ind.  541,  24 

"  Shaffer  v.  Richardson,  27  Ind.  122.  N.  E.  334. 

*' Denbo    v.    Wright,    53    Ind.    226;  «  Scott  v.  Smith,  171  Ind.  453,  85  N. 

Mercer    v.    Patterson,    41    Ind.    440;  E.  774. 

Griffin  v.  Smith,  45  Ind.  366.  In  a  suit  "  Featherngill  v.  Dougherty,  44  Ind. 

by  a  widow  against  the  administrator  App.  452,  89  X.  E.  521. 

of  her  deceased  husband  to   recover 


702  INDIANA    PROBATE    LAW.  §    418 

to  testify  where  the  coiuroversy  is  between  two  estates  as  to 
the  ownership  of  certain  assets.®" 

Nor  is  an  administrator  barred  from  testifying  as  to  where 
personal  property  of  his  decedent  was  found.*** 

The  reason  of  the  exchision  under  this  statute  Iving-  in  the 
danger  of  false  testimony  from  witnesses  biased  by  their  interest, 
the  rule  is  inapplicable  if  the  interest  does  not  exist.  Hence  it 
is  held  that  to  disqualify  a  party  from  testifying  there  must  be  a 
conflict  of  interest  involved  in  the  issue  on  trial,  the  effect  of  the 
evidence  being  to  enlarge  or  diminish  the  rights  of  the  estate. 
Indirect  consequences  to  the  witness  do  not  constitute  such  an 
interest  as  will  disqualify  him.  An  interest  in  the  question  is 
not  enough ;  it  must  be  an  interest  in  the  event." 

§  418.  Competency  in  contest  of  wills. — Heirs  and  devisees 
are  not  prohibited  by  this  statute  from  testifying  in  a  suit  to  set 
aside  a  will  as  to  the  mental  capacity  of  the  testator,  although 
his  executor  is  a  party  to  the  action,  and  although  the  examina- 
tion is  as  to  matters  that  occurred  prior  to  the  death  of  the 
testator.  In  Lamb  v.  Lamb.  105  Ind.  456,  the  court  says: 
"We  have  given  the  question  much  consideration,  and  our  con- 
clusion is  that  the  statute  referred  to  does  not  prohibit  parties 
from  testifying  in  such  a  case  as  this,  and  upon  such  a  subject 
as  the  mental  capacity  of  the  testator.  The  question  of  the  sound- 
ness or  unsoundness  of  mind  is  fully  open  to  investigation  by 
both  parties,  and  it  is  not  a  question  upon  which  one  party  can 
speak  of  matters  of  which  only  he  and  the  dead  had  knowledge. 
*  *  *  The  purpose  of  the  statute  was  to  prevent  undue  ad- 
vantage as  against  those  whose  interests  would  be  unjustly 
prejudiced  by  permitting  parties  to  testify  as  to  matters  which 
they  assume  were  only  known  to  them  and  the  deceased,  or  as  to 

"  Michigan  Trust  Co.  v.  Probasco,  Nearpass  v.  Oilman,  104  N.  Y.  506,  10 

29  Tnd.  App.  109,  63  N.  E.  255.  X.  E.  894;  Albany  County  Sav.  Bank 

■*  Hartzell  v.  Hartzell,  37  Ind.  App.  v.  McCarty,  149  N.  Y.  71,  43  N.  E. 

481.  76  N.  E.  439.  427;  Adams  v.  Board  of  Trustees,  37 

""  Hobart  v.  Hobart,  62  N.  Y.  80 ;  Fla.  266,  20  So.  266. 
Hill  V.  Hilton,  80  Ala.  528,  1  So.  340 ; 


§419  COMPETENCY    OF    WITNESSES.  703 

matters  which,  from  their  nature,  could  only  have  been  known 
to  them  and  the  dead.  *  *  *  There  is  nothing  in  the  spirit 
of  the  statute,  and  certainly  nothing  in  the  letter,  which  excludes 
parties  from  testifying  respecting  matters  open  to  the  observation 
of  all  the  friends  and  acquaintances  of  the  deceased.  Such  a 
matter  is  the  mental  capacity  of  the  testator  whose  will  is  con- 
tested."^' 

A  physician  who  is  present  in  a  professional  capacity  at  the 
time  a  testator  makes  his  will  is  disqualified  from  testifying  as 
to  the  mental  capacity  of  such  testator.  This  on  the  ground, 
however,  that  such  knowledge  as  he  may  have  acquired  is  pro- 
fessional and  confidential.  For  the  same  reason  the  evidence 
of  the  attorney  who  drew  the  will  should  be  excluded.^^ 

The  doctrine  in  Lamb  v.  Lamb  is,  however,  in  the  nature  of 
an  exception  to  the  rule,  and  in  will  contest  cases  parties  to  the 
issue  are  disqualified  to  testify  as  to  matters  which  occurred  in 
the  lifetime  of  the  testator  which  were  not  open  to  the  observa- 
tion of  all  the  friends  and  acquaintances  of  the  deceased. ^° 

§  419.  When  heirs  or  devisees  are  parties. — In  all  suits  by 
or  against  heirs  or  devisees,  founded  on  a  contract  with  or  a 
demand  against  the  ancestor,  to  obtain  title  to  or  possession  of 
property,  real  or  personal,  of  or  in  right  of  such  ancestor,  or  to 
affect  the  same  in  any  manner,  neither  party  to  such  suit  shall  be 
a  competent  witness  as  to  any  matter  which  occurred  prior  to  the 
death  of  the  ancestor.^^ 

"  Staser  v.  Hogan,  120  Ind.  207,  21  wherein  one  of  the  defendants  filed  a 

N.  E.  911,  22  N.  E.  990.  cross-petition   claiming   the   exclusive 

^Gnrley  v.  Park,   135  Ind.  440,  35  ownership  of  a  part  of  the  land,  by 

N.  E.  279.  virtue  of  a  grant   from  an  ancestor, 

»°  I^IcDonald  v.  McDonald,  142  Ind.  he  was  entitled  to  call,  as  a  witness  to 

55.  41  N.  E.  336;  Belledin  v.  Gooley,  the  execution  of  the  grant,  his  co-de- 

157  Ind.  49,  60  N.  E.  706.  fendant  to  the  original  petition,  such 

"  Burns'  R.  S.  1908,  §  522 ;  Slayback  co-defendant  being,  as  to  the  cross- 

V.  Witt,  151  Ind.  376,  50  N.  E.  389.  petition,   an   opposite  party.     Nye  v. 

This  statute  applies  only  to  the  cases  Lowry,  82  Ind.  316;  Cupp  v.  Ayers,  89 

therein  specified.     Cross  v.   Herr,  96  Ind.  60.     In  a  suit  for  the  partition  of 

Ind.  96.  In  an  action  for  partition  be-  real  estate  of  which  the  ancestor  died 

tween   heirs   of   a   common   ancestor,  seized,  an  heir,  who  is  a  party  to  the 


704  INDIANA    PROBATE    LAW.  §    4^9 

This  statute  embodies  the  classes  who  fall  within  another 
exception  to  the  general  rule  as  to  the  competency  of  parties 
as  witnesses.  The  intention  of  this  statute  is,  in  suits  by  heirs 
or  devisees,  to  exclude  the  testimony  of  the  parties  to  the  action 
as  to  any  matter  which  occurred  prior  to  the  death  of  the  an- 
cestor, so  as  to  prevent  the  living  from  testifying  against  the  rep- 
resentatives of  the  dead.  It  the  plaintiff  sues  as  heir,  on  a  con- 
tract with  his  ancestor,  then  the  parties  are  excluded  as  witnesses 
by  the  letter  of  the  section;  but  if  the  suit  is  by  the  heir,  as  such, 
on  a  demand,  not  against,  but  in  favor  of,  the  ancestor,  not  aris- 
ing on  contract,  then  it  depends  upon  the  construction  to  be 
given  to  the  other  parts  of  the  section  as  to  whether  the  parties 
are  competent  witnesses  for  themselves  or  not."- 

In  an  action  by  or  against  heirs  untler  the  above  statute,  the 
death  of  the  ancestor  must,  in  some  legal  way,  be  made  to  appear 
before  an  objection  to  the  competency  of  a  witness  to  testify 
under  this  statute  can  be  sustained."'  And  the  word  heirs,  as 
used  in  this  statute,  is  intended  to  include  all  persons  who  take 
the  estate  of  the  decedent  under  the  law,  or  by  virtue  of  a  will."* 

Under  this  statute  one  element  which  creates  the  right  of 
action  is  the  fact  that  the  decedent  held  title  to  the  property  in- 
volved, at  the  time  of  his  death;  and  the  widow  under  proper 
circumstances  must  be  regarded  as  an  heir."^ 

suit,    is   not   a   competent   witness   to  pctcnt  to  testify  to  the  statements  of 

prove  declarations  of  the  ancestor  at  her  husband  concerning  advancements 

the    time   of   making   certain   convey-  made  to  one  of  the  heirs,  if  no  objec- 

ances  to  his  children,  in  order  to  show  tion  is  made  that  such  statements  are 

that  the  conveyances  were  gifts,  and  confidential   and   for  that   reason   in- 

not   advancements,    as    the    law    pre-  competent.     Advancements    made    by 

sumes.    Wolfe  v.  Kable,  107  Ind.  565,  her  husband  in  no  way  affect  her  right 

8  N.  E.  559.  to  one-third  of  his  real  estate,  and  she 

^  Malady  v.  IMcEnary,  30  Ind.  273 ;  has  no  interest  in  the  controversy  in 

Larch  v.  Goodacre,  126  Ind.  224,  26  N,  relation  to  such  advancements.     Scott 

E.  49.  V.  Harris,  127  Ind.  520,  27  N.  E.  150. 

°*  Hodgson  v.  Jeffries,  52  Ind.  334.  .\  widow   is  a  competent  witness  in 

^*  Larch  v.  Goodacre,  126  Ind.  224,  favor  of  her  husband's  estate.     Orn- 

26  N.  E.  49;  Peacock  v.  Albin,  39  Ind.  dorf  v.  Jeffries,  46  Ind.  App.  254,  91 

25.    In  an  action  for  partition  by  the  N.  E.  608. 

heirs    of    a    land-owner,    his    widow,        "' Glass  v.  Davis,  118  Ind.  593,  21  X. 

though  a  party  to  the  record,  is  com-  E.  319.    In  an  action  by  a  creditor  of 


419 


COMPETENCY    OF    WITNESSES. 


705 


A  sui'viving  wife,  asserting  a  claim  to  the  lands  of  her  deceased 
husband,  and  against  children  whom  he  has  made  his  devisees,  is 
incompetent  to  testify  as  a  witness  in  such  action.®** 

The  word  "heirs"  as  used  in  this  statute  includes  all  persons 
who  take  any  portion  of  the  decedent's  estate  by  descent,  or  who 
would  so  take,  if  they  did  not  take  by  virtue  of  a  will.'*' 

Evidence,  which  under  this  statute,  is  incompetent,  cannot  be 
introduced  by  indirection.  What  cannot  be  done  directly  can- 
not be  accomplished  indirectly.  Thus  a  party  to  a  suit,  who  is 
himself  not  competent  to  testify,  will  not  be  permitted  to  rehearse 
his  version  of  an  alleged  transaction  with  the  decedent,  to  some 
third  person,  and  then,  by  calling  such  third  person  to  testify, 
get  the  conversation  before  the  jury.  As  is  said,  "if  he  could, 
then  all  any  claimant  need  do  is  to  pour  into  the  ear  of  some  one 
his  unsworn  account  of  a  transaction,  and  thus  make  good  his 
claim."®^ 

Under  this  statute  neither  party  is  a  competent  witness  as  to 
anv  matter  which  occurred  prior  to  the  death  of  the  ancestor.^" 


a  decedent  to  compel  the  widow  to  ac- 
count for  the  value  of  the  personal 
property  of  such  decedent  taken  and 
converted  by  her  after  his  death,  and 
to  compel  the  application  of  the  pro- 
ceeds to  the  payment  of  the  plaintiff's 
debt,  the  widow  is  an  "heir"  and  the 
plaintiff  is  not  a  competent  witness  to 
testify  as  to  any  matter  which  occurred 
prior  to  the  death  of  the  ancestor. 
Allegations  in  the  complaint  making 
the  widow  liable  as  an  administratrix 
de  son  tort  did  not  change  the  action 
so  as  to  make  the  plaintiff  competent 
to  testify  as  a  witness.  Larch  v. 
Goodacre,  126  Ind.  224,  26  N.  E.  49. 
In  a  suit  to  recover  lands,  the  plain- 
tiffs were  the  widow  and  heirs  of  H., 
claiming  by  descent  from  him,  and 
that  he  took  title  by  conveyance  from 
F.  The  defendant  claimed  by  virtue 
of  a  prior  contract  of  purchase  from 
F.     Held,  that  the  defendant  was  a 


competent  witness  in  her  own  behalf. 
Harding  v.  Elzey,  88  Ind.  321. 

■^Wiseman  v.  Wiseman,  72)  Ind.  112, 
38  Am.  Rep.  115. 

"''  Peacock  v.  Albin,  39  Ind.  25 ;  Cupp 
v.  Ayers,  89  Ind.  60.  On  the  trial  of 
an  action  against  heirs  founded  on  a 
contract  with  their  ancestor,  to  obtain 
title  to  real  property,  a  party  incom- 
petent to  testify,  cannot  call  from  a 
witness  such  party's  statements  of 
facts  made  to  the  witness  before  and 
during  examination.  Cottrell  v.  Cot- 
trell,  81  Ind.  87. 

""  Cottrell  v.  Cottrell,  81  Ind.  87. 

"Williams  v.  Riley,  88  Ind.  290; 
Scherer  v.  Ingerman,  110  Ind.  428,  11 
N.  E.  8,  12  N.  E.  304.  The  plaintiff 
in  an  ejectment  suit  had  contracted  in 
writing  for  the  sale  of  the  land  to  the 
defendant,  and  upon  a  decree  of  fore- 
closure of  his  lien  as  vendor  had  pur- 
chased the  land  and  had  obtained  the 


45— Pro.  Law. 


706  INDIANA    PROBATE    LAW.  §    419 

And  if  either  a  husband  or  wife  is  incompetent  to  testify  the 
evidence  of  the  other  is  inadmissible.^ 

In  an  action  for  partition  of  real  estate  a  defendant  who 
claims  an  interest  in  tlie  land  from  a  common  ancestor  with 
the  plaintiff  is  an  incompetent  witness  as  to  matters  against  the 
ancestor  before  his  death." 

In  a  suit  to  foreclose  a  school  fund  mortgage  against  a  dece- 
dent's real  estate,  the  relator  has  no  such  interest  in  the  result 
of  the  suit  as  will  render  him  incompetent  to  testify.^ 

Where  a  decedent  had.  in  an  application  for  a  benefit  certifi- 
cate in  a  fraternal  and  beneficial  order,  stated  that  he  wanted  the 
benefit  at  his  death  paid  to  his  "legal  heirs,"  such  heirs  were  not 
incompetent  in  a  suit  on  the  certificate,  to  testify  as  to  the  condi- 
tion of  the  decedent's  liealth,  or  mental  capacity.' 

A  devisee  under  a  will  is  not  a  competent  witness  concerning 
matters  connected  with  the  execution  of  the  will;  and  when  the 
husband  or  wife  of  a  devisee  is  a  witness  to  such  will  such  hus- 
band or  wife  is  not  a  competent  witness  to  prove  the  due  exe- 
cution of  the  will.^ 

sheriff's  deed;  and  the  children  of  the  prior  to  a  husband's  death,  in  an  ac- 

principal  defendant,  having  been  ad-  tion  concerning  the  title  to  land  de- 

niitted  to  defend,  set  up  that  the  con-  rived  by  the  widow  from  her  deceased 

tract  of  sale,  though  made  in  the  name  husband.      Cuthrell    v.    Cuthrell,    101 

of  their  father,  was  for  the  benefit  of  Ind.    375.      In    an    action   between    a 

their  mother,  who  was  not   made   a  brother  and  sister  relative  to  the  title 

party  to  the  foreclosure,  and  that  as  to  land  which  both  claim  through  their 

her  heirs  they  had  her  rights.     Held,  deceased    father,    a    brother    of    the 

that  there  was  no  error  in  permitting  claimants  and  his  wife,  who  are  par- 

the  plaintiff  to  testify  concerning  the  ties  to  the  action  but  not  to  the  issues, 

possession  of  the  premises  by  the  prin-  and  disclaim  any  interest  in  the  sub- 

cipal  defendant  before  the  commence-  ject-matter    of    the    controversy,    are 

ment  of  the  action.     Bitting  v.   Ten  competent  witnesses.     Martin  v.  Mar- 

Eyck,  85  Ind.  357.  tin.  118  Ind.  227,  20  X.  E.  763. 

'  Scherer  v.  Ingerman,  110  Ind.  428,  HVorks  v.  State,  120  Ind.  119,  22  N. 

11  N.  E.  8,  12  N.  E.  304;  LjTiam  v.  E.  127. 

Buckner,   60  Ind.   402 ;    Creighton   v.  ■*  Supreme  Lodge,  K.  P.  v.  Andrews, 

Hoppis,  99  Ind.  369.  31    Ind.    App.    422,    67    N.    E.    1009, 

-Baker  v.  Baker,  69  Ind.  399;  Wise-  Lamb  v.  Lamb,  105  Ind.  456,  5  X.  E. 

man  v.  Wiseman,  7?)  Ind.  112,  38  Am.  171. 

Rep.  115.    A  party  is  not  a  competent  °  Belledin  v.  Gooley,  157  Ind.  49,  60 

witness  as  to  matters  which  occurred  X.  E.  706. 


§    4-0  COMPETENCY   OF   WITNESSES.  707 

§  420.  The  statutes  construed  together. — The  first  two 
sections  of  the  statute  must  be  construed  together  so  that  effect 
can  be  given  to  each.  They  were  not  intended  to  apply  to  the 
same  classes  of  cases.  The  first  relates  to  cases  in  which  ex- 
ecutors and  administrators  are  parties,  and  the  second  to  those 
in  which  heirs  or  devisees  are  parties.  The  subject-matters  of 
the  suits  under  these  sections  may  be  different,  but  their  con- 
struction, as  to  the  competency  of  witnesses,  must  be  governed 
by  the  same  rule."  The  court  says,  in  one  case:  "The  first  ex- 
cludes the  living  from  testifying  against  the  dead  in  all  actions 
where  an  executor  or  administrator  is  a  party,  where  a  judgment 
may  be  rendered  for  or  against  an  estate.  The  object  of  the 
actions  contemplated  by  this  section  is  to  recover  a  judgment  for 
money.  They  consist  mainly  of  claims  filed  against  an  estate, 
and  actions  brought  by  executors  and  administrators  *  *  * 
on  accounts  and  notes  that  were  owing  to  the  decedent  in  his 
lifetime.  It  also  embraces  actions  upon  contracts,  agreements, 
and  the  like,  where  a  judgment  in  money  is  sought.  It  is  very 
seldom  that  an  executor  or  administrator  is  either  a  proper  or 
necessar}^  party  to  an  action,  the  object  of  which  is  to  obtain 
title  to,  or  possession  of,  lands  or  personal  property;  but  where 
they  are  such  parties  the  other  parties  to  the  action  are  excluded 
from  testifying.  The  second  section  embraces  actions  brought 
b}-  or  against  heirs,  founded  on  a  contract  with,  or  a  demand 
against,  an  ancestor,  the  object  of  which  is  to  obtain  title  to  or 
possession  of  land  or  specific  articles  of  property,  or  to  affect  the 
same  in  any  way.  This  section  was  not  intended  to  apply  to 
actions,  the  object  of  which  was  to  recover  a  judgment  for 
money.  It  embraces  actions  to  obtain  the  possession  of  land ; 
for  specific  performance  of  contract  with  the  ancestor  in  ref- 
erence to  land ;  to  quiet  the  title  to  lands,  or  to  remove  a  cloud 
from  such  title;  and  actions  to  obtain  the  possession  or  try  the 
title  to  articles  of  personal  property.  *  *  *  This  construction 
gives  full  force  and  eft'ect  to  each  section,  and  will  in  our  judg- 

"  Cravens  v.  Kitts,  64  Ind.  581. 


708  INDIANA    PROBATE    LAW.  §    421 

ment,  exclude  the  living  from  testifying  against  the  dead  in  all 
cases  contemplated  by  the  legislature."' 

§  421.  As  to  testimony  of  decedent's  agent. — Another  ex- 
ception to  the  general  rule  is  found  in  the  following  statute,  a 
portion  of  which  is  quoted :  "When,  in  any  case,  an  agent  of  the 
decedent  shall  testify  on  behalf  of  an  executor,  administrator 
or  heirs,  concerning  any  transaction  as  having  been  had  by 
him,  as  such  agent,  with  a  party  to  the  suit,  his  assignor  or 
grantor,  and  in  the  absence  of  the  decedent;  or  if  any  witness 
shall,  on  behalf  of  the  executor,  administrator  or  heirs,  testify  to 
any  conversation  or  admission  of  a  party  to  the  suit,  his  assignor 
or  grantor,  as  having  been  had  or  made  in  the  absence  of  the  de- 
ceased; then  the  party  against  whom  such  evidence  is  adduced, 
his  assignor  or  grantor,  shall  be  competent  to  testify  concerning 
the  same  matter.  No  person  who  shall  have  acted  as  an  agent 
in  the  making  or  continuing  of  a  contract  with  any  person  who 
may  have  died  shall  be  a  competent  witness  in  any  suit  upon  or 
involving  such  contract,  as  to  matters  occurring  prior  to  the 
death  of  such  decedent,  on  behalf  of  the  principal  to  such  con- 
tract, against  the  legal  representatives  or  heirs  of  the  decedent, 
unless  he  shall  be  called  by  such  heirs  or  legal  representatives. 
And  in  such  case  he  shall  be  a  competent  witness  only  as  to 
matters  concerning  which  he  is  interrogated  by  such  heirs  or 
representatives."* 

One  who  is  employed  for  a  particular  service,  as  a  scrivener 
to  write  a  will,  is  not  an  agent  within  the  meaning  of  this  statute. 
Ordinarily,  an  agent  is  one  who  acts  in  the  place  of,  and  on  be- 

^  Peacock  v.  Albin,  39  Ind.  25.  the  conversation  in  question.    Martin 

*  Burns'  R.  S.  1908,  §  523.     Where,  v.  Martin,  118  Ind.  227,  20  N.  E.  763. 

in  an  action  between  heirs,  a  witness  In  an  action  by  an  administrator  for 

is  called  by  one  party,  who  testifies  as  the  recovery  of  money  had  and  re- 

to  a  conversation  relating  to  the  mat-  ceived,  it  was  proper  for  the  court  to 

ters  in  controversy,  had  by  him  with  refuse  to  permit  the  defendant  to  tes- 

the  opposite  party,  prior  to  the  dece-  tify  to  the  conversations  he  had  with 

dent's  death  and  in  his  absence,  such  the  deceased  at  the  time  he  received 

opposite  party  becomes   a  competent  the   money  in   dispute.     Copeland  v. 

witness,  in  response  to  such  testimony,  Koontz,  125  Ind.  126,  25  N.  E.  174. 
but  his  right  to  testify  is  limited  to 


421 


COMPETENCY    OF    WITNESSES. 


709 


half  of  his  principal,  and  it  is  to  agents  of  this  class  the  statute 
applies.  ** 

To  so  much  of  this  statute  as  regards  testimony  as  to  "any 
conversation  or  admission,"  the  spirit  as  well  as  the  letter  of 
the  statute  limits  the  living  party,  in  his  testimony,  to  the  con- 
versation or  admission  about  which  the  witness  called  against 
him  may  testify.^" 

An  attorney,  who  is  present  with  his  client  at  a  settlement 
only  for  the  purpose  of  advising  him  in  reference  to  the  nego- 


'Kenney  v.  Phillipy,  91  Ind.  511; 
Welsh  V.  Brown,  8  Ind.  App.  421,  35 
N.  E.  921.  In  an  action  on  a  claim 
against  a  decedent's  estate,  involving 
a  note  bearing  eight  per  cent,  interest 
alleged  to  have  evolved  out  of  a  land 
transaction  between  the  claimant  and 
the  decedent,  the  attorney  for  the  de- 
cedent was  permitted  to  testify  to  the 
facts  in  relation  to  the  land  transac- 
tion between  the  decedent  and  the 
claimant's  husband,  with  the  statement 
by  the  court  to  the  jury  that  plaintiff 
was  not  bound  by  anything  that  was 
said  or  done  in  her  absence,  but  that 
the  circumstances  connected  with  the 
transaction  were  proper  to  go  to  the 
jur}-  with  the  other  evidence  in  the 
case.  Held,  that  such  testimony,  as  a 
history  of  the  transaction,  subject  to 
the  limitations  stated  by  the  court, 
was  proper  to  go  to  the  jury,  in  order 
to  make  the  evidence  off^ered  in  rela- 
tion to  the  transaction  more  intelligi- 
ble. Hedge  v.  Talbott,  8  Ind.  App. 
597,  36  N.  E.  437. 

"Martin  v.  Martin,  118  Ind.  227,  20 
N.  E.  763.  Where  the  defendant  in 
such  action  admitted  the  receipt  of 
the  money  from  the  deceased,  but 
averred  that  the  same  was  a  gift  ex- 
cept such  sum  as  might  be  necessary 
to  pay  the  decedent's  funeral  ex- 
penses, it  was  competent  to  read  in 


evidence,  as  tending  to  refute  the  de- 
fendant's said  claim,  a  deed  from  the 
decedent  and  her  husband  to  the  hus- 
band's children,  which  secured  by  res- 
ervation a  support  from  the  grantors 
during  the  term  of  the  natural  life  of 
each,  and  at  their  death  a  decent 
burial.  Copeland  v.  Koontz,  125  Ind. 
126,  25  N.  E.  174.  In  an  action  by  an 
administrator  to  set  aside  a  transfer 
of  a  note  and  mortgage  by  a  dece- 
dent, the  note  and  mortgage  having 
been  transferred  by  the  decedent  to 
the  son,  a  minor,  of  one  of  the  de- 
fendants, who,  as  his  guardian,  held 
both  the  note  and  mortgage  for  his 
benefit,  the  wife  of  such  guardian  is 
not  a  competent  witness  for  her  son, 
the  assignee,  under  §  5231,  Burns'  R. 
S.  1908,  providing  that:  "Where  the 
husband  or  wife  is  a  party,  and  not  a 
competent  witness  in  his  or  her  own 
behalf,  the  other  shall  also  be  ex- 
cluded." Walker  v.  Steele,  121  Ind. 
436,  22  N.  E.  142,  23  N.  E.  271.  Where 
a  witness  on  behalf  of  the  estate  testi- 
fies to  a  conversation  between  him 
and  the  claimant  in  the  presence  of 
the  decedent,  such  evidence  is  under 
the  statute  conclusive  as  to  the  pres- 
ence of  the  deceased,  and  that  fact 
cannot  be  rebutted.  Kibler  v.  Potter, 
11  Ind.  App.  604,  39  N.  E.  525. 


710  INDIANA    PROBATE    LAW.  §    4-1 

tiations,  is  not  such  an  agent  as  will  preclude  him  from  testifying 
as  to  the  transaction." 

In  an  action  by  him  on  an  insurance  contract  made  by  their 
ancestor,  the  agent  of  the  company  taking  the  insurance  is  not 
a  competent  witness  as  to  matters  occurring  between  him  and 
the  ancestor." 

One.  wlio  in  the  presence  of  a  party,  signs  such  party's  name 
to  a  note  by  his  request  is  not,  by  that  act,  made  the  agent  of 
the  party  whose  name  he  so  signs,  and  is  not  incompetent  to 
testify  as  to  such  transaction  in  an  action  on  the  note  after  the 
death  of  the  party." 

This  statute  has  been  construed  to  mean  that  the  agent  of  the 
person  still  living  shall  not  be  a  competent  witness  on  behalf  of 
his  principal  to  testify  against  the  estate  of  the  other  party  to  the 
contract  except  at  the  instance  of  the  legal  representative  or  heirs 
of  the  deceased. ^^ 

The  exclusion  of  the  other  party  extends  only  to  transactions 

"Piper  V.  Fosher,  121  Ind.  407,  23  been  the  agent  of  the  opposite  party, 

N.  E.  269.  rather  than  the  agent  of  the  deceased 

"Insurance  Co.  v.   Brien,   111   Ind.  person.      The    object    of    the    statute 

281,  12  N.  E.  315.  doubtless   was   to   prevent   the   living 

"  Tremain  v.  Severin,  16  Ind.  App.  party  from  having  an  advantage  over 

447,   45    N.   E.   620.     "The   fact  that  the    dead    person    or    his    property. 

Swartz  wrote  the  decedent's  name  at  Death  has  sealed  the  lips  of  the  de- 

his  request  and  in  his  presence,  did  not  ceased,  and  the  law  aims  to  close  the 

make  him  such  an  agent  as  the  statute  lips  of  the  living  party.     If  the  agent 

contemplates.     He   was    at   most   but  of  the  living  party  were  allowed  to 

an    amanuensis — mere   instrument   by  testify  against  the  estate  of  the  dece- 

which  the  decedent  accomplished  the  dent  as  to  matters  occurring  during 

purpose  of  signing  the  note — a  mere  the  life  of  the  deceased,  the  purpose 

instrument,  like  a  stamp,  or  a  pen.    If  of  the  statute  would  in  many  cases  be 

the  signature  had  been  placed  to  the  defeated.    Was  it  not  also  the  purpose 

note  by  the  witness  at  a  time  when  of  the  statute  to  prevent  the  agent  of 

appellant's  decedent  was  not  present,  the  living  party  from  testifying  as  to 

there  might  be  some  reason  for  the  matters  that  occurred  in  the   deced- 

contention  that  Swartz  was  an  agent,  ent's  lifetime?" 

Moreover,   it   is,   to   say  the  least,   a  "  Foster  v.  Honan,  22  Ind.  App.  252, 

question  of  doubt  whether  the  agent  53  N.  E.  667 ;  Geisendorfif  v.  Cobb.  — 

spoken  of  in  the  statute  must  not  have  Ind.  App.  — ,  94  N.  E.  236. 


8    422  COMPETENCY    OF    WITNESSES.  7I I 

with  the  deceased  agent,  as  agent,  not  to  facts  outside  of  and 
independent  of  such  agency." 

§  422.  When  assignor  or  grantor  excluded.— The  statute 
provides  that,  in  all  cases  where  executors,  administrators,  heirs 
or  devisees  are  parties,  and  one  of  the  parties  to  the  suit  shall  be 
incompetent,  as  hereinbefore  provided,  to  testify  against  them, 
then  the  assignor  or  grantor  of  a  party  making  such  assignment 
or  grant  voluntarily  shall  be  deemed  a  party  adverse  to  the  ex- 
ecutor, administrator,  heir  or  devisee,  as  the  case  may  be.^*^ 

The  assignor  of  a  claim  against  the  estate  of  a  decedent  is  ex- 
cluded by  the  spirit  and  intent  of  these  statutes  from  testifying 
in  an  action  on  such  claim  brought  by  the  assignee. 

Where  an  estate  has  been  finally  settled,  leaving  uncollected 
claims  due  the  estate  in  the  hands  of  the  executor  or  adminis- 
trator, and  such  claims  have  been  assigned,  under  the  statute,  by 
the  executor  or  administrator  to  any  heir  or  legatee,  such  as- 
signment makes  no  change  in  the  competency  of  the  parties  as 
witnesses  in  an  action  upon  such  claim ;  the  person  from  whom 
the  claim  is  due  cannot  testify  in  an  action  thereon  for  its  col- 
lection brought  by  the  assignee  of  any  such  claim.  Where  such 
an  assignment  is  made,  the  executor  or  administrator  ceases  to 
represent  the  estate,  but  the  representation  is  devolved  by  law 
upon  the  heir  or  legatee,  who  then  becomes  subrogated  to  the 
rights  of  such  executor  or  administrator.  The  assignment  can- 
not transfer  a  power  different  in  nature  from  that  which  was 
possessed  by  the  assignor.  An  executor  or  administrator  who 
so  assigns  a  claim  due  an  estate  assumes  none  of  the  liabilities 
of  an  ordinaiy  assignor.  The  assignment  is  by  operation  of 
law,  but  it  does  not  restore  the  competency  of  persons  against 
whom  the  claims  are  assigned.  The  intention  of  the  law  is  to 
protect  the  estates  of  deceased  persons,  no  matter  by  whom  rep- 
resented.^' 

The  court  says  upon  this  subject :    "The  assignment  of  an  ac- 

"  First  Xat.  Bank  v.  Payne,  111  Mo.    Fitzgerald  v.  Cox,  39  Ind.  84;  Mod- 
291,  20  S.  W.  41,  33  Am.  St.  520.  lin  v.  Northwestern  Tpk.  Co.,  48  Ind. 

"Burns'  R.  S.  1908,  §  526.  492;  Carter  v.  Zenblin,  68  Ind.  436. 

"Peacock    v.    Albin,    39    Ind.    25; 


712  INDIANA  PROBATE  LAW.  §  422 

count  under  the  code  does  not  vest  the  legal  title  in  the  assignee. 
It  is  a  mere  equitable  transfer,  which  does  not  authorize  the  as- 
signee to  maintain  an  action  in  his  own  name  without  making  the 
assignor  a  party  to  answer  to  his  assignment  or  interest  in  the 
claim.  The  assignor  does  not  warrant  the  solvency  of  the  claim, 
nor  is  he  responsible  to  the  assignee  if  he  fails  to  collect  the  ac- 
count. The  account  of  itself  proves  nothing.  The  making  out 
of  an  account  against  the  estate  of  a  decedent,  its  assignment, 
and  the  filing  of  the  same  create  no  legal  liability.  The  correct- 
ness of  the  claim  must  be  proved  by  competent  and  sufficient  evi- 
dence before  the  court  can  allow  the  same.  When  the  assignee 
sues  upon  an  assigned  account  or  upon  a  note  equitably  assigned, 
and  makes  the  assignor  a  party  to  answer  as  to  his  interest  there- 
in, the  assignor  and  the  assignee  are  not  adverse  parties.  Their 
interests  are  identical."^'' 

And  when  a  person  has  assigned  his  interest  in  a  matter  grow- 
ing out  of  a  contract  with  the  decedent,  such  person  is  not  a  com- 
petent witness  in  favor  of  the  assignee.^"  In  an  action  by  an  ad- 
ministrator on  a  note  made  payable  to  the  decedent,  the  son  of  the 
deceased  was  held  incompetent  to  testify  that  the  decedent  had 
transferred  the  note  to  him  and  he  had  assigned  it  to  the  de- 
fendant.-" 

Under  the  foregoing  exceptions  noted,  the  circumstances  of  the 
case  may  often  fender  the  executor  or  administrator  an  incom- 
petent witness.  But  in  all  actions  by  an  executor  or  administrator 
on  contracts  assigned  to  the  decedent,  when  the  assignor  is  alive 
and  a  competent  witness  in  the  cause,  the  executor  or  adminis- 
trator and  the  defendant  or  defendants  shall  be  competent  wit- 
nesses as  to  all  matters  which  occurred  between  the  assignor  and 
the  defendant  or  defendants  prior  to  notice  of  such  assignment.^^ 

The  wife  of  the  assignor  of  a  claim  against  a  decedent's  estate 
who  is  herself  assignee  of  a  part  of  such  claim  cannot  testify  in 

"Ketcham  v.  Hill,  42  Ind.  64;  Gift  165.  9  N.  E.  907;  Reynolds  v.  Linard, 

V.   Shockley,  11   Ind.  297;   Martin  v.  95  Ind.  48. 

Asher.   25    Ind.   237;    Cox   v.    Davis,        ""Toner  v.   Wagner,   158   Ind.   447, 

16  Ind.  378.  6Z  N.  E.  859. 

"  Taylor    v.    Duesterberg,    109    Ind.         -^  Burns'  R.  S.  1908,  §  527. 


§    423  COMPETENCY    OF    WITNESSES.  713 

favor  of  the  assignee  of  the  remaining  part  of  the  claim."  It  is 
not  the  policy  of  the  law  to  permit  a  party  to  a  contract,  on  find- 
ing that  he  has  not  legal  evidence,  to  sustain  an  action  to  make 
himself  a  competent  witness  by  a  transfer  of  his  cause  of  action 
to  another.  And  it  can  make  no  difference  whether  the  transfer 
was  made  in  good  faith  for  a  valuable  consideration  or  not." 
Nor  can  a  party  deprive  his  adversary  of  the  right  to  make  him  a 
witness  by  an  assignment  of  his  claim  although  he  cannot  by  such 
assignment  make  himself  competent  to  testify  for  his  assignee.^* 

§  423.  When  executors  and  administrators  are  defendants. 
— When,  in  any  case,  a  person  shall  be  charged  with  unlawfully 
taking  or  detaining  personal  property,  or  having  done  damage 
thereto,  and  such  person,  by  his  pleading,  shall  defend  on  the 
ground  that  he  is  executor,  administrator,  guardian  or  heir,  and 
as  such  has  taken  or  detains  the  property,  or  has  done  the  acts 
charged,  then  no  person  shall  be  competent  to  testify  who  would 
not  be  competent  if  the  person  so  defending  were  the  complain- 
ant; but  when  the  person  complaining  cannot  testify,  then  the 
party  so  defending  shall  also  be  excluded.-^ 

Where  a  co-plaintiff  in  an  action  of  replevin  dies,  and  his  ad- 
ministrator is  substituted  in  the  action,  the  defendant  is  not  a 
competent  witness  in  his  own  behalf,  as  to  a  conversation  be- 
tween himself  and  the  decedent  in  regard  to  the  title  to  the  prop- 
erty in  controversy.'" 

§  424.  Adverse  party  required  to  testify. — The  exceptions 
noted  in  the  foregoing  sections  do  not  absolutely  disqualify  the 
classes  of  witnesses  therein  mentioned.  They  are  simply  rendered 
incompetent  as  a  measure  of  policy.  And  in  all  the  cases  named 
in  the  statute  the  incompetency  may  be  waived.  The  provision  in 
§  526,  Burns'  R.  S.  1908,  authorizes  the  examination  of  the  ad- 
verse party  at  the  instigation  of  the  other  party  to  the  suit,  or  at 

**  Payne  v.  Goldbach,  14  Ind.  App.  ''  Roberts   v.   Briscoe,  44   Ohio    St- 

100,  42  N.  E.  642.  596,  10  N.  E.  61. 

"'Buck   V.    Haynes,   75    Mich.    397.  -=^  Burns'  R.  S.  1908,  §  523. 

42  N.  W.  949;   Louis  v.  Easton,  50  ="  Charles  v.  Malott,  65  Ind.  184. 
Ala.  470. 


714  INDIANA  PROBATE  LAW.  §  424 

the  discretion  of  the  court.  It  reads:  "That  in  all  cases  referred 
to  (in  the  foregoing  statute,  above  set  out)  any  party  to  such  suit 
shall  have  the  right  to  call  and  examine  any  party  adverse  to  him 
as  a  witness,  or  the  court  may,  in  its  discretion,  require  any  party 
to  a  suit,  or  other  person,  to  testify,  and  any  abuse  of  such  discre- 
tion shall  be  reviewable  on  appeal."  The  word  "require,"  as  used 
in  this  proviso,  should  not  be  used  in  the  sense  of  allowing  a  will- 
ing witness  to  testify.  The  idea  conveyed  is  rather  that  of  com- 
pelling an  unwilling  witness  to  give  his  evidence.  The  require- 
ment is  at  the  discretion  of  the  court  trying  the  cause  and  not 
upon  the  party's  own  application.-^  The  adverse  party  may  call 
him  as  a  witness,  and  when  so  called  he  may  testify  in  his  own 
behalf. -''  The  executor  or  administrator  under  a  former  statute 
was  not  a  competent  witness  unless  called  by  the  adverse  party  or 
required  by  the  court  to  testify."''  But  the  statute  does  not  now 
disqualify  him. 

If  not  required  to  testify  by  the  opposite  party,  the  witness 
must  be  so  required  by  the  court  to  become  competent,  otherwise 
he  cannot  be  allowed  to  testify  if  proper  objection  be  made.  It 
is  only  by  objection  made  and  sustained,  or  overruled,  that  the 
question  of  admissibility  of  evidence  can  be  raised.  When  such 
objection  is  overruled,  by  such  ruling  the  court  holds  that  the  law 
permits  the  witness  to  testify  without  his  being  required  by  the 

"  Williams    v.    Allen,    49    Ind.    295.  able  on  appeal.     Willetts  v.  Schuyler, 

Where    a    claim    is    filed   by   a   wife  3  Ind.  App.  118,  29  N.  E.  273;  Tal- 

against    her    deceased    husband's    es-  bott  v.  Barber,  11  Ind.  App.  1,  38  N. 

tate,  it  is  competent  for  the  court  to  E.  487,  54  Am.  St.  491. 
call  the  wife  as  a  witness,  and  permit         ^  Bartlett  v.   Burden,   11    Ind.   App. 

her  to   testify  to  matters  which   oc-  419,  39  N.  E.  175 ;  Talbott  v.  Barber, 

curred  during  the  lifetime  of  the  de-  11  Ind.  App.  1 ;  38  N.  E.  487,  54  Am. 

cedent.      She    would    have    been    in-  St.  491 ;  Malady  v.  IMcEnary,  30  Ind. 

competent,   except    for   the   action   of  ZIZ. 

the  court  requiring  her  to  testif}-.  -■'  Thom  v.  Wilson,  24  Ind.  323. 
It  is  within  the  power  of  courts,  in  The  action  of  the  court  in  overruling 
the  exercise  of  their  discretion,  to  an  objection  to  the  competency  of  a 
require  witnesses  to  testify  who  are  witness  is  not  eqviivalent  to  a  re- 
rendered  incompetent  by  the  provi-  quirement  by  the  court  that  the  wit- 
sions  of  the  above  section,  and  there  ness  shall  testif3^  Smith  v.  Smith, 
is  no  legislative  limit  upon  such  dis-  76  Ind.  236,  overruled.  Cupp  v.  Ay- 
cretion  except  that  it  shall  be  review-  ers,    89   Ind.    60;    Nelson   v.    Master- 


§    424  COMPETENCY    OF    WITNESSES.  715 

court  or  the  opposite  party.^"  The  adverse  party  has  it  in  his 
power  to  make  such  incompetent  witness  competent.  The  objec- 
tion does  not  go  to  the  evidence  itself  but  to  the  person. ^^ 

The  statute  recognizes  that  it  may  sometimes  be  to  the  advan- 
tage of  the  estate,  and  conducive  to  the  ends  of  justice,  to  permit 
an  adverse  party,  or  incompetent  witness,  to  testify;  and  to  this 
end  it  has  given  to  the  personal  representative  of  the  deceased 
the  right  to  exercise  a  discretion  in  making  an  incompetent  wit- 
ness competent.  If  he  exercises  such  right  he  accredits  such  wit- 
ness with  competency,  and  he  may  be  used  by  either  party  to  the 
suit.^- 

A  witness  incompetent  lo  testify  by  reason  of  the  foregoing 
statutes,  called  by  the  adverse  party  to  testify  as  to  some  particu- 
lar fact  is,  by  such  act,  rendered  competent  for  all  the  purposes 
of  the  case,  and  may  then  testify  fully  for  himself.  For  if  a  party 
puts  an  incompetent  witness  on  the  stand  by  exercise  of  the  power 
given  him,  over  the  witness,  he  accredits  such  witness  with  com- 
petency and  renders  him  entirely  competent  in  the  cause.  In  one 
case  the  court  saying :  "Having  been  called  as  a  witness  by  the 
adverse  parties  and  examined  by  them  as  a  witness  upon  certain 
matters  pertinent  to  some  of  the  issues  in  the  case,  we  think  that 
he  was  thereby  rendered  competent  for  all  purposes. "^^ 

ton,  2  Ind.  App.   524,  28  N.  E.  731.  210,    91    Am.    Dec.    148;    Choteau   v. 

On  trial  of  an  action  by  an  adminis-  Thompson,    3    Ohio    St.   424.      In    an 

trator,  the  defendant,  was  not  compe-  action  against  a  decedent's  estate,  if 

tent    to    testify    in    denial    of    admis-  the  defendant  calls  the  plaintiff  as  a 

sions  proved  against  him  and  shown  witness  in  his  behalf,  he  waives  the 

to   have   been   made   since   the   intes-  right  to   object  if  he  testifies   in  his 

tate's   death,   unless    required   to   tes-  own  behalf.     Bartlett  v.   Burden,   11 

tify.     Froman  v.  Rous,  83  Ind.  94.  Ind.  App.  419,  39  N.  E.  175. 

'"Cupp  V.  Ayers,  89  Ind.  60,  over-         ^Warren    v.    Adams,    19   Col.    515, 

ruling,  on  this  point  Smith  v.  Smith,  36  Pac.  604;  Young  v.   Montgomery, 

76  Ind.  236.  161  Ind.  68,  67  N.  E.  684;  Gilbert  v. 

^Gilbert  v.  Swain,  9  Ind.  App.  88,  Swain,  9  Ind.  App.  88,  36  N.  E.  374; 

36  N.   E.  374;   Owings  v.  Jones,   151  Bartlett  v.  Burden,  11  Ind.  App.  419, 

Ind.  30,  51  N.  E.  82.  39     X.     E.     175.     In     Fulton     Bank 

'=i\Ialady  v.  McEnary,  30  Ind.  273;  v.    Stafford,   2   Wend.    (N.    Y.)    483, 

Gilbert  v.  Swain,  9  Ind.  App.  88,  36  485,    one    Mather    was    called    as    a 

N.    E.    374;    Wrape   v.    Hampson,    78  witness     on     behalf     of     the     plain- 

Ind.  499;   Seip  v.   Storch,  52  Pa.   St.  tiff,     and     he     testified     to    the     sig- 


7i6 


INDIANA    PROBATE   LAW 


§    424 


It  is  within  the  power  of  courts,  in  the  exercise  of  their  discre- 
tion, to  require  witnesses  to  testify  who  are  rendered  incompetent 
by  these  statutes,  and  there  is  no  legislative  restriction  or  limit 
upon  such  discretion,  except  that  it  shall  be  reviewable  on  appeal.""* 


natures  to  the  note  and  bills  of 
exchange  in  suit.  The  defendant 
called  him  afterwards  to  prove  that 
such  note  and  bills  were  accommoda- 
tion paper.  In  ruling  upon  his  com- 
petency to  testify  upon  the  latter  sub- 
ject, the  court,  on  appeal,  said: 
"When  a  witness  has  been  sworn  in 
chief,  the  opposite  party  may  not 
only  cross-examine  him  in  relation  to 
the  point  which  he  was  called  to 
prove,  but  he  may  examine  him  as  to 
any  matter  embraced  in  the  issue.  He 
may  establish  his  defense  by  him 
without  calling  any  other  witnesses. 
If  he  is  a  competent  witness  to  the 
jury  for  any  purpose,  he  is  so  for 
all  purposes ;  and  the  party  who  orig- 
inally called  him  and  availed  himself 
of  his  testimony,  cannot  subsequently 
object  to  him  on  the  ground  of  inter- 
est any  more  than  he  can  impeach 
his  general  character.  He  is  es- 
topped from  denying  his  competency 
as  well  as  his  credibility."  See,  also, 
Jackson  v.  Varick,  7  Cow.  (N.  Y.) 
238,  Varick  v.  Jackson,  on  error,  2 
Wend.  (N.  Y.)  167,  19  Am.  Dec. 
571. 

In  Floyd  v.  Bovard,  6  Watts  & 
S.  (Pa.)  75,  the  plaintifif  called  a  de- 
fendant as  a  witness,  and  examined 
him.  At  a  subsequent  stage  of  the 
trial  he  was  called  and  examined  as 
a  witness  for  the  defendants.  The 
witness  was  distinctly  interested,  but 
Gibson,  C.  J.,  speaking  for  the  court, 
said :  "The  plaintiff  himself  had 
called  him  to  prove  a  part  of  his 
case,  the  witness  consenting  to  be 
sworn ;  and  had  not  this  been  done, 


he  certamly  would  have  been  incom- 
petent to  testify  for  his  co-defend- 
ant. And  why?  Because  his  inter- 
est raised  a  presumption  unfavorable 
to  his  credibility,  which  would  not 
have  been  rebutted.  But  did  not  the 
plaintiff  rebut  it  when  he  produced 
him  as  a  witness  worthy  of  credit, 
and  had  the  benefit  of  his  testimony? 
Or  did  he  assert  no  more  than  that 
he  was  worthy  of  credit  only  when 
he  testified  against  his  own  interest? 
The  man  who  is  honest  enough  to 
declare  the  whole  truth,  when  it 
makes  against  him,  will  be  honest 
enough  to  declare  no  more  than  the 
truth  in  his  own  favor.  It  would 
give  a  party  an  unjust  advantage  to 
let  him  pick  out  particular  parts  of  a 
witness's  testimony  and  reject  the 
rest.  But  the  matter  does  not  rest 
on  principle  alone;  for  it  is  a  famil- 
iar rule  that  a  party  cannot  discredit 
his  own  witness,  or  show  his  incom- 
petency." 

''Meyer  v.  Morris,  78  Ind.  558; 
Willetts  v.  Schuyler,  3  Ind.  App.  118, 
29  N.  E.  273;  Gilbert  v.  Swain,  9 
Ind.  App.  88,  2>6  N.  E.  374.  The  dis- 
cretion with  which  the  trial  court  is 
invested  as  regards  testimony  con- 
cerning matters  affecting  a  dece- 
dent's estate,  which  occurred  prior 
to  the  death  of  the  decedent,  must 
be  determined  upon  the  merits  of 
each  case.  Forgerson  v.  Smith,  104 
Ind.  246,  3  N.  E.  866.  To  be  avail- 
able on  appeal,  it  must  affirmatively 
appear  that  the  trial  court  abused  its 
discretion  in  admitting  the  testimony 
of  the  parties  as  to  matter  concern- 


§  424 


COMPETENCY    OF    WITNESSES. 


717 


No  general  rule  can  be  laid  down  for  the  exercise  of  the  court's 
discretion  in  such  cases,  but  each  case  must  be  determined  upon 
its  own  peculiar  characteristics.^^ 

The  statute  provides  that  for  an  abuse  of  the  court's  discretion 
in  the  admission  of  evidence  a  review  may  be  had  in  the  Supreme 
Court.  Just  what  constitutes  an  abuse  of  the  court's  discretion 
is  hard  to  declare;  no  arbitrary  rule  can  be  laid  down,  nor  can 
any  formal  definition  be  given  of  what  such  abuse  may  be,  that 
would  fit  all  cases.  The  trial  court  must  judge  when  the  danger 
of  perjur}'  is  removed,  and  must  also  determine  what  witnesses 
are  worthy  of  credence,  and  when  it  is  proper  to  permit  a  party 
to  testify.  No  other  court  can  so  accurately  determine  the  ques- 
tions as  the  court  in  whose  presence  the  witnesses  stand.  It 
would  perhaps  be  better  if  the  legislature  had  seen  fit  to  leave 
nothing  to  the  discretion  of  the  court,  and  either  to  positively 
admit  or  directly  exclude  all  parties  in  case  where  the  testimony 
refers  to  the  acts  or  words  of  a  deceased  person.^'' 

The  revised  statutes  of  1852  gave  the  court  discretion  in  mak- 


ing  a   decedent's   estate.     Clouser  v. 
Ruckman,  104  Ind.  588,  4  N.  E.  202. 

"  In  an  action  on  a  promissory 
note  against  the  representative  of  a 
deceased  maker  and  a  surviving 
maker,  where  each  defendant  set  up 
a  separate  defense,  it  was  discretion- 
arj'-  with  the  trial  court  to  permit  the 
surviving  maker  to  testify.  Meyer  v. 
Morris,  78  Ind.  558.  It  is  not  an 
abuse  of  discretion  to  exclude  a 
party  from  testifying  as  to  oral  dec- 
larations of  the  decedent,  by  which 
the  witness  expects  to  acquire  prop- 
erty belonging  to  the  decedent.  For- 
gerson  v.  Smith,  104  Ind.  246,  3  N. 
E.  866.  The  action  of  a  trial  court 
in  requiring  a  witness,  not  otherwise 
competent,  to  testify,  was  the  exer- 
cise of  an  absolute  discretion  which 
could  not  be  controlled  by  the  Su- 
preme Court.  Perrill  v.  NichoUs, 
89  Ind.  444. 


'"Forgerson  v.  Smith,  104  Ind.  246, 
3  N.  E.  866;  Meyer  v.  Morris,  78 
Ind.  558;  Wrape  v.  Hampson,  78 
Ind.  499.  Where,  in  an  action  be- 
tween heirs,  the  court  permits  the 
parties  to  the  suit  to  testify,  the  fact 
that  there  are  several  plaintiffs  and 
but  one  defendant  will  not  indicate 
an  abuse  of  discretion  on  the  part  of 
the  court  where  the  defendant,  of 
necessity,  has  a  superior  knowledge 
of  the  principal  facts  involved  in  the 
case.  Sheets  v.  Bray,  125  Ind.  33,  24 
N.  E.  357.  In  an  action  against  a 
devisee,  founded  on  a  transaction 
with  his  testator,  after  plaintiff  has 
made  out  a  prima  facie  case,  it  is 
not  an  abuse  of  the  discretion  vested 
with  the  trial  judge,  by  §  526,  R.  S. 
1908,  to  call  plaintiff  to  testify 
thereto.  Talbott  v.  Barber,  11  Ind. 
App.  1,  38  N.  E.  487,  54  Am.  St.  491. 


7l8  INDIANA    PROBATE    LAW.  §    425 

ing  tlie  allowance  of  claims  against  estates  to  examine,  under 
oath,  the  claimant  or  the  executor  or  administrator  of  the  estate.^^ 

But  the  provisions  of  this  section  were  held  not  to  apply  to 
regularly  instituted  suits  at  law,  and  that  in  such  suits  the  general 
rules  of  the  common  law  as  to  the  competency  of  parties  to  tes- 
tify prevailed,^**  and  even  in  suits  upon  claims  the  competency  of 
an  executor  or  administrator  to  testify  did  not  depend  upon  his 
being  called  as  a  witness  by  the  opposite  party.^® 

The  earlier  statutes,  of  which  the  above  quoted  sections  are  the 
outgrowth,  did  not  go  quite  so  far  as  the  present  statutes  do  upon 
the  matters  involved.  They  provided  that  in  all  suits  where  ex- 
ecutors or  administrators  were  parties  in  a  case  where  a  judgment 
might  be  rendered  either  for  or  against  the  estate  represented  by 
such  executor  or  administrator,  neither  party  should  be  allowed 
to  testifv  as  a  witness,  unless  required  to  do  so  by  the  opposite 
party  or  by  the  court  trying  the  cause,  except  in  cases  arising  up.jn 
contracts  with  the  executor  or  administrator  of  such  estate. ''^ 

This  statute  was  first  enacted  in  1861,  and  was.  with  some 
amendments,  re-enacted  ^larcli  11,  1867. 

The  statute  in  its  present  form  relative  to  the  competency  of 
witnesses  did  not  become  the  law  of  this  state  until  1881,  and 
substantially  re-enacts  the  rule  of  the  earlier  statutes,  so  that  now 
in  all  cases  under  the  statute  relative  to  the  competency  of  wit- 
nesses, provided  in  the  sections  herein  set  out,  any  party  to  such 
suit  shall  have  the  right  to  call  and  examine,  as  a  witness  in  the 
case,  any  adverse  party  in  such  suit ;  or  the  court  may,  in  its  dis- 
cretion, require  any  party  to  the  suit,  or  other  person,  to  testify. 

Though  one  be  nominally  an  adverse  party,  if  his  real  interest 
lies  with  the  party  calling  him  as  a  witness,  he  is  incompetent." 

§  425.  Unjust  claim — Claimant's  testimony. — Where  the 
administrator  has  allowed  and  paid  an  unjust  claim,  the  heir  may 
contest  the  validity  of  the  claim  and  its  allowance  by  exceptions 

^^R.  S.  1852,  p.  261,  %  66.  ^"2  G.  &  H.,  p.  168;  2  R.  *S.  1876, 

^'Hodson  V.  Alacv,  5  Ind.  500.  pp.  134,  135. 

^Littler  V.   Smiley,  9  Ind.  116.  '^  Bardell  v.  Brady,  172  111.  420,  50 

N.  E.  124. 


§    4^5  COMPETENCY    OF    WITNESSES.  719 

filed  to  the  report  of  such  administrator,  and  the  claimant  will  be 
an  incompetent  witness  to  establish  the  justness  of  the  claim  and 
the  amount  due  him  thereon.  The  court  says :  "It  has  been  the 
purpose  of  the  courts,  so  far  as  our  investigation  has  enabled  us 
to  judge,  to  carefully  and  vigilantly  protect  the  estates  of  the 
dead  from  the  danger  of  wrong  by  the  living.  Whenever  the 
question  has  been  presented  for  judicial  decision,  the  earnest  en- 
deavor has  been  to  shut  the  door  against  possible  collusion,  fraud, 
or  discoveiy.  Following  the  current  of  judicial  opinion  it  must 
be  held  that  the  original  claimant  is  an  incompetent  witness  in 
such  proceeding  as  the  present.  If  appellant's  contention  is  to 
prevail,  then  all  one  need  do  who  asserts  a  claim  against  the  es- 
tate of  a  decedent  is  to  procure  its  payment ;  and  when  the  ques- 
tion of  whether  the  payment  was  justly  made  or  not  comes  up 
for  trial,  offer  himself  as  a  witness  and  make  good  his  claim.  To 
pennit  this  would  tend  to  make  administrators  careless  of  their 
duties,  for  they  would  feel  that  if  objection  should  be  urged 
against  their  action  they  could  sustain  it  by  the  testimony  of  the 
party  by  whom  the  claim  was  made.  If  we  declare  the  nile  to  be 
that  the  claimant  is  a  competent  witness,  we  make  plain  the  way 
for  evading  the  statute."" 

Where  the  administrator  is  personally  interested  in  having  the 
claim  established  he  is  not  permitted  to  testify.  Where  an  ad- 
ministrator has  paid  a  claim  without  it  having  been  filed  and  al- 
lowed and  his  right  to  credit  for  such  payment  is  contested,  nei- 
ther the  administrator  nor  the  alleged  creditor  can  testify.*^ 

*=Clift  V.   Shockley,  11  Ind.  297.         So.  419;  In  re  Smith,  153  N.  Y.  124, 
*'  Hullett  V.  Hood,  109  Ala.  345,  19    47  N.  E.  ZZ. 


CHAPTER  XX. 

APPEALS   IX    PROBATE    MATTERS. 

§426.  Right  of  appeal   wholly   statu-  §430.  As  to  parties  to  appeal. 

tory.  431.  Time   for  perfecting  appeals. 

427.  The  purpose  of  the  statute.  432.  Appeals  in  certain  cases. 

428.  When  appeals  should  be  taken  433.  When  an  appeal  bond  must  be 

under  the  civil  code.  filed. 

429.  To  what  court  appeals  must  be       434.  Right  of  appeal  without  bond. 

taken.  435.  Review  of  judgment. 

§  426.  Right  of  appeal  wholly  statutory. — To  appeal  signi- 
fies to  remove  a  cause  in  litigation  from  an  inferior  to  a  higher 
jurisdiction.  The  right  of  appeal  rests  solely  upon  statutor}-  pro- 
visions and  unless  those  provisions  are  complied  with  the  right 
cannot  be  made  available.^ 

The  probate  power  of  the  courts  rests  in  the  statutes,  and  the 
right  to  substitute  the  judgment  of  some  higher  court  for  the  or- 
der, judgment,  or  decree  of  the  probate  court  must  likewise  be 
found  in  the  statutes. - 

An  appeal  may  include  both  questions  of  fact  and  questions  of 
law,  but  power  is  conferred  upon  the  appellate  tribunal  to  deter- 
mine and  adjudicate  questions  of  law  only.^ 

Our  statute  on  appeals  in  probate  matters  provides  that  any 
person  considering  himself  aggrieved  by  any  decision  of  a  circuit 

'Galentine  v.  Wood,  137  Ind.  532,        '  Coflfman   v.   Reeves,  62  Ind.   334; 

35  N.  E.  901;  Bollenbacher  v.  Whis-  Eckert  v.   Binkley,    134  Ind.   614,   33 

nand,    148  Ind.   Zll,   47   N.   E.   706;  N.   E.   619,  34  N.   E.   441;   Wait   v. 

Briggs  V.   Barker,   145  Mass.  287,  13  Westfall,  161  Ind.  648,  68  N.  E.  271. 

N.  E.  907;  Dennison  v.  Talmage,  29  But    see    §  698,    Burns'    R.    S.    1908. 

Ohio  St.  433.  Held  applicable  only  in  cases  of  ex- 

-  Me3^er  v.  Stewart,  48  Md.  423 ;  clusively  equitable  jurisdiction.  Park- 
Ross  V.  Murphy,  55  Mo.  372.  ison  v.   Thompson,   164  Ind.   609,   1Z 

720 


§    4-6  APPEALS    IN    PROBATE    MATTERS.  72 1 

court  or  judge  thereof  in  vacation,  growing  out  of  any  matter 
connected  with  a  decedent's  estate,  may  prosecute  an  appeal  to  the 
Supreme  Court,  upon  fihng  with  the  clerk  of  such  circuit  court 
a  bond  with  penalty  in  double  the  sum  in  controversy,  in  cases 
where  an  amount  of  money  is  involved,  or  where  there  is  none, 
in  a  reasonable  sum,  to  be  designated  by  such  clerk,  with  suffi- 
cient security,  payable  to  the  opposite  party  in  such  appeal,  con- 
ditioned for  the  diligent  prosecution  of  such  appeal,  for  the  pay- 
ment of  the  judgment,  which  may  be  affirmed  and  all  costs,  if 
costs  be  adjudged  against  the  appellant.* 

Under  this  section  of  the  statute,  any  one  aggrieved,  or  so 
considering  himself,  by  any  decision  of  any  matter  growing  out 
of  or  connected  with  proceedings  relative  to  the  settlement  of  a 
decedent's  estate,  has  an  appeal  provided  for  him,  and  must  take 
such  appeal  in  the  manner  there  fixed.  These  statutes  contain  all 
the  law  governing  appeals  in  such  cases. 

It  will  be  noted  that  this  section  of  the  statute  gives  a  right 
to  appeal  from  "any  decision"  to  any  one  aggrieved  thereby,  and 
it  may  be  exercised  by  any  such  person  whether  a  party  to  the 

X.  E.  109;  Hanrahan  v.  Knicker-  aside  an  order  for  the  distribution  of 
bocker,  35  Ind.  App.  138,  72  N.  E.  an  estate.  Wood  v.  Wood,  51  Ind. 
1137.  141.  The  sections  of  the  statute  con- 
*  Burns'  R.  S.  1908,  §  2977.  Ap-  cerning  decedents'  estates  relating  to 
peals  taken  to  the  Supreme  Court  appeals  are  applicable  only  to  appeals 
from  all  orders,  decisions  and  judg-  from  decisions  rendered  in  proceed- 
ments  relating  to  the  settlement  of  ings  provided  for  in  that  statute,  and 
decedents'  estates  must  be  taken  un-  have  no  relation  to  cases  prosecuted 
der  this  section.  Seward  v.  Clark,  independently  of  that  statute.  Rusk 
67  Ind.  289;  Bell  v.  Mousset,  71  Ind.  v.  Gray,  74  Ind.  231;  Willson  v.  Bin- 
347 ;  Yearley  v.  Sharp,  96  Ind.  469 ;  ford,  74  Ind.  424 ;  Hillenberg  v.  Ben- 
Browning  V.  McCracken,  97  Ind.  279;  nett,  88  Ind.  540;  Dillman  v.  Dillman, 
Miller  v.  Carmichael,  98  Ind.  236;  90  Ind.  585;  Bake  v.  Smiley,  84  Ind 
Bennett  v.  Bennett,  102  Ind.  86,  1  N.  212;  Taylor  v.  Burk,  91  Ind.  252 
E.  199;  Rinehart  v.  Vail,  103  Ind.  McCurdy  v.  Love,  97  Ind.  62;  Heller 
159,  2  N.  E.  330.  An  appeal  from  a  v.  Clark,  103  Ind.  591,  3  N.  E.  844 
judgment  in  a  proceeding  to  set  aside  Walker  v.  Steele,  121  Ind.  436,  22  N 
a  final  settlement  must  be  taken  un-  E.  142,  23  N.  E.  271;  Koons  v.  Mel 
der  this  section.  Webb  v.  Simpson,  lett,  121  Ind.  585,  23  N.  E.  95,  7  L.  R 
105  Ind.  327,  4  N.  E.  900.  An  appeal  A.  231n;  Simmons  v.  Beazel,  125  Ind 
will    not    lie    from    an    order    setting  362.  25  X.  E.  344. 


46 — Pro.  Law, 


722 


INDIANA    rROBATE    LAW.  §    426 


record  or  not.''  Tlie  person  appealing  must  show  some  interest  in 
the  matter  in  Htigation,  that  is  some  pecuniary  interest.  He  must 
be  aggrieved  in  some  legal  sense  by  some  judgment,  order,  de- 
cree, or  by  "any  decision"  which  operates  directly  upon  some 
property,  money,  or  thing  of  value,  in  which  he  is  pecuniarily 
interested ;°  an  interest  such  as  a  creditor,  distributee,  legatee, 
heir,  or  devisee.  To  be  "aggrieved"  in  one's  sense  of  justice, 
or  feeling  of  what  is  right  or  proper,  gives  no  right  of  appeal.' 

It  is  probable  that  one  who  becomes  interested  in  the  subject- 
matter  of  an  appeal  after  the  appeal  has  been  taken  could  be  made 
a  party  in  the  appellate  tribunal.^  And  where  an  executor  or  ad- 
ministrator appeals  it  is  not  necessar}'  that  he  be  aggrieved  in 
his  individual  capacity." 

It  has  been  settled  by  the  decisions  of  the  Supreme  Court,  that 
the  provisions  of  the  civil  code,  in  relation  to  appeals  to  thai 
court  from  judgments  in  civil  actions,  are  not  applicable  to  and 
do  not  govern  appeals  from  "any  decision  of  the  circuit  court, 
or  judge  thereof  in  vacation,  growing  out  of  any  matter  con- 
nected with  a  decedent's  estate,"  but  that  these  latter  appeals 
are  governed  and  controlled  by  the  sections  of  the  statute  regu- 
lating the  settlement  of  decedents'  estates,  and  to  this  extent 
overrules  the  case  of  Hamlyn  v.  Xesbit.  t^j  Ind.  284.  and  cases 
based  thereon,  which  hold  that  such  appeals  might  be  taken 
under  this  statute  and  also  under  the  provisions  of  the  code 
relative  to  appeals  in  civil  cases. ^° 

*  Schouler  Extrs.,  §  151 ;  Bryant  v.  212 ;   McCurdy  v.  Love,  97  Ind.  62 ; 

Allen;  6  N.  H.   116;  Wood  v.  John-  Browning    v.     McCracken.    97     Ind. 

son,  13  111.  App.  548.  279;  Bennett  v.  Bennett,  102  Ind.  86, 

•Pettingill    v.     Pettingill.    60    Me.  1   N.   E.   199;   Walker  v.   Steele,   121 

411;  Deering  v.  Adams,  34  Me.  41.  Ind.  436,  22  X.  E.  142.  23  X.  E.  271; 

'Norton's  Appeal.  46  Conn.  527.  Koons   v.    Mellett.    121    Ind.    585,   23 

'Rogers  v.  Martin,  58  X.  H.  442;  X.    E.    95,    7    L.    R.    A.    231n.     Pro- 

Ewbanks  Manuel,  §  142.  ceedings    treated    as    in    mandamus, 

"  Swann   v.    Housman,   90  Va.   816,  ending    in    a    final    order    against    an 

20  S.  E.  830.  administrator,  compelling  him  to  pay 

'"Seward    v.    Clark,    67    Ind.    289;  money,  invokes  the  probate  jurisdic- 

Bell  V.  Mousset,  71  Ind.  347;  West  v.  tion    of    the    court;    and    an    appeal 

Cavins,  74  Ind.  265 ;  Taylor  v.  Burk,  from  such  an  order  not  taken  with- 

91  Ind.  252;  Bake  v.  Smiley,  84  Ind.  in  the  time   required,   should  be  dis- 


§    4^7  APPEALS    IN    PROBATE    MATTERS.  723 

§  427.  The  purpose  of  the  statute. — This  section  of  the 
statute,  and  the  other  sections  considered  in  this  chapter,  were 
intended  to  be  appHed  only  to  such  suits  or  proceedings  as  were 
manifestly  had  and  held  under  the  provisions  of  the  act  for  the 
settlement  of  decedents'  estates,  and  which  were  not  authorized 
by  any  other  statute;  and  appeals  in  other  classes  of  actions  are 
regulated  by  and  must  conform  to  the  requirements  of  the  civil 
code  on  that  subject/^ 

The  proceeding  under  this  statute  is  one  not  provided  for  in 
the  civil  code,  but  a  special  and  necessary-  mode  of  controlling 
the  action  of  executors  and  administrators,  and  expediting  the 
settlement  of  estates.  It  is  necessary  that  estates  should  be 
closed  up  in  as  speedy  a  manner  as  possible,  and  their  settlement 
should  not  be  delayed  by  long  and  vexatious  appeals.  For  this 
purpose,  this  statute,  making  a  short  limit  upon  such  appeals, 
was  enacted/" 

The  purpose  and  intention  of  the  act  for  the  settlement  of 
decedents'  estates  is  the  speedy  settlement  of  such  estates,  the 

missed.  Bennett  v.  Bennett,  102  Ind.  subject  of  appeals.  Seward  v.  Clark, 
86,  1  X.  E.  199.  67  Ind.  289,  and  Bell  v.  Mousset,  71 
"Rusk  V.  Gray,  74  Ind.  231;  Will-  Ind.  347,  distinguished.  Rusk  v. 
son  V.  Binford,  74  Ind.  424;  Galen-  Gray,  74  Ind.  231;  Willson  v.  Bin- 
tine  V.  Wood,  137  Ind.  532,  35  N.  E.  ford,  74  Ind.  424;  Bake  v.  Smiley,  84 
901;  Beaty  v.  Voris,  138  Ind.  265,  37  Ind.  212;  HiUenberg  v.  Bennett,  88 
X.  E.  785.  A  proceeding  by  a  cred-  Ind.  540;  Heller  v.  Clark,  103  Ind. 
itor  of   a  legatee  against  such   lega-  591,  3  N.  E.  844. 

tee    and    the    administrator   with    the  '=  Browning  v.   McCracken,  97  Ind. 

will  annexed,  to  reach  money  in  the  279;    Miller    v.    Carmichael,    98    Ind. 

hands  of  such  administrator,  for  the  236;  Bender  v.  Wampler,  84  Ind.  172. 

payment    of    a    debt   due    from   such  .-Xn   appeal  from  the  judgment   in  a 

legatee,   is   not  a  proceeding  author-  proceeding  to  set  aside  the  final  re- 

ized  by  the  act  providing  for  the  set-  port  of  an  administrator  is  governed 

tlement   of  a   decedent's   estate;    and,  by  the  statutes  relating  to  decedents' 

hence,     the     law     regulating     appeals  estates,  and  it  must  be  taken  within 

from  such  proceedings  has  no  appli-  the   time    therein    designated.      Webb 

cation.     Koons   v.    Mellett,    121    Ind.  v.    Simpson,    105    Ind.   327,   4   N.    E. 

585,  23  X.  E.  95,  7  L.  R.  A.  231n.   In  900.     An  appeal  may  be  taken  from 

an    action    to    recover    a    money    de-  a  judgment  approving  a  final  settle- 

mand  on  contract,  the  appeal  is  reg-  ment  without  awaiting  the  final  dis- 

ulated  by,  and  must  conform  to,  the  charge   of   the   executor  or   adminis- 

requirements  of  the  civil  code  on  the  trator.     Taylor  v.  Burk,  91  Ind.  252. 


724  INDIANA    PROBATE    LAW.  §    4-7 

final  determination,  without  unnecessary  delay,  of  all  ques- 
tions involved  in  or  affecting  said  estates,  the  prompt  payment 
of  all  the  decedent's  debts  and  liabilities,  and  the  distribution 
at  once  of  the  surplus.  The  legislature  never  intended  that 
the  settlement  of  such  estates  should  be  delayed  and  embar- 
rassed by  appeals  to  the  Supreme  Court  from  decisions  ren- 
dered in  the  progress  of  such  settlement  by  the  provisions  of 
the  code  relating  to  appeals  in  ordinary  civil  actions,  but  that 
all  such  appeals  must  be  taken  witliin  the  time  limited  by  the 
section  of  the  statute  following  the  one  under  consideration.^' 

Nor  do  these  statutes  apply  to  civil  suits  by  an  administrator 
or  executor  to  recover  a  money  demand  on  contract.  If  he 
sees  fit  to  appeal  in  such  cases,  the  appeal  must  be  in  conformity 
to  the  provisions  of  the  code  as  to  appeals  in  civil  actions.^* 

But  the  right  of  a  party  to  an  appeal  under  the  code  of  civil 
procedure  cannot  be  cut  off  or  abridged  by  joining  him  as  de- 
fendant in  an  action  against  an  estate,  such  action  being  founded 
on  a  claim  for  the  payment  of  which  such  party  is  not  jointly 
bound  with  the  decedent  by  contract;  for  before  a  party  can  be 
summoned  to  answer  to  a  claim  filed  against  the  estate  of  a 
deceased  person,  it  must  be  shown  that  such  i)arty  and  the 
person  against  whose  estate  the  claim  is  filed  were  jointly  liable 
by  a  contract  which  is  the  basis  of  the  pending  claim. ^' 

"Seward    v.    Clark,    67    Ind.    289;  and  mortgage  assigned  by  the  dece- 

Ten  Brook  v.  Maxwell,  5  Ind.  App.  dent,  is  properly  taken  if  it  conforms 

353,  32  N.  E.  106;  Merritt  v.  Straw,  as  to  time  and  manner  with  the  stat- 

6  Ind.  App.  360,  23  N.  E.  657.  iitcs.  governing  appeals  from  the  cir- 


"Hillenberg  v.  Bennett,  88  Ind 
540;  Dillman  v.  Dillman,  90  Ind 
585;  Yearley  v.  Sharp,  96  Ind.  469: 
Browning  v.  McCracken,  97  Ind.  279; 
Heller  v.  Clark,  103  Ind.  591,  3  N.  E 


ciiit  and  superior  courts  in  civil  ac- 
tions. Walker  v.  Steele,  121  Ind. 
436.  22  N.  E.  142,  23  N.  E.  271. 

"Claypool  V.  Gish,  108  Ind.  424,  9 
X.    E.   382.     Where   one   is   made   a 


844.  The  time  and  manner  of  taking  party  to  an  action  against  an  estate, 
and  perfecting  an  appeal,  in  an  action  founded  on  a  claim  for  which  he  is 
by  an  administrator  on  a  note  exe-  not  jointly  bound  with  the  decedent 
cuted  to  his  decedent  in  his  lifetime,  by  contract,  he  is  not  required  to  ap- 
is governed  by  the  code.  Merritt  v.  peal  under  the  statute  regulating  ap- 
Straw,  6  Ind.  App.  360,  33  N.  E.  657.  peals  in  matters  connected  with  de- 
An  appeal  in  an  action  by  an  admin-  cedent's  estate,  but  may  appeal  un- 
istrator  to   recover   as   assets   a  note  der  the  code  of  civil  procedure.     In 


§    428  APPEALS    IN    PROBATE    MATTERS.  725 

An  appeal  from  a  judgment  in  a  proceeding  to  set  aside  the 
final  report  of  an  executor  or  administrator  is  governed  and 
controlled  by  the  provisions  of  these  statutes  and  not  by  the 
provisions  of  the  civil  code  relating  to  appeals/*^ 

§  428.    When  appeals  should  be  taken  under  the  civil  code. 

— The  statutes  considered  in  this  chapter  provide  the  mode  for 
appeals  of  actions  growing  out  of  decisions  rendered  in  pro- 
ceedings relative  to  matters  connected  with  a  decedent's  estate, 
and  apply  only  where  probate  jurisdiction  is  being  exercised  and 
not  to  appeals  in  actions  authorized  by  the  civil  code.  The  test 
is,  did  the  decision  appealed  from  grow  out  of  a  matter  connected 
with  the  settlement  of  a  decedent's  estate  ?^' 

The  provision  of  this  section  of  the  statute  in  reference  to 
the  time  when  the  transcript  should  be  filed  in  the  Supreme 
Court  does  not  apply  to  appeals  in  proceedings  supplementary 
to  execution  when  an  executor  or  administrator  may  have  been 
required  to  answer  under  §  862,  Burns'  R.  S.  1908/^ 

In  an  action  begun  during  the  lifetime  of  the  plaintiff,  to  annul 
and  enjoin  the  collection  of  a  judgment,  and  prosecuted  to  a  final 

an  action  to  foreclose  a  mortgage,  The  provision  of  the  decedent's  act  re- 
where  the  mortgagor  dies  pending  quiring  a  bond  to  be  filed  within  ten 
the  action  and  his  administrator  is  days  in  order  to  take  an  appeal  from 
made  a  party  defendant,  an  appeal  any  decision  growing  out  of  any  mat- 
therefrom  is  taken  under  the  civil  ter  connected  with  a  decedent's  es- 
code,  and  not  under  the  decedent's  tate,  is  only  applicable  to  cases  where 
act.  Holland  v.  Holland,  131  Ind.  the  probate  jurisdiction  is  involved, 
196,  30  N.  E.  1075.  and   has   no    reference   to   an   action 

"Webb   V.    Simpson,   105   Ind.  Zll,  where   the   validity   of   a  will   is  in- 

4  N.  E.  900;  Taylor  v.  Burk,  91  Ind.  volved.    or    a    suit   to    quiet    title    is 

252.  brought   by  an   executor.     Mason  v. 

"  Mark  v.   North,   155  Ind.  575,  57  Roll,  130  Ind.  260,  29  N.  E.  1135.   An 

N.  E.  902;  Koons  v.  Mellett,  121  Ind.  appeal   from   a   proceeding  instituted 

585,  2Z  N.   E.  95,  7  L.   R.  A.  231n;  by    an    executrix    against    the    heirs 

Mason  v.  Roll,  130  Ind.  260,  29  N.  E.  and  legatees  of  the  decedent  to  have 

1135;   Holderman   v.   Wood,  34   Ind.  the   will   construed   is   not   governed, 

App.   519,  1Z  N.   E.    199;   Rogers   v.  as  to  the  time  of  taking  the  appeal. 

State,  26  Ind.  App.  144,  59  N.  E.  334;  by   the   provisions   of  the   decedent's 

Baker   v.    Edwards,    156   Ind.   53,   59  act.      Simmons    v.    Beazel,    125    Ind. 

N.  E.  174.  362,  25  N.  E.  344. 

"Dillman  v.  Dillman,  90  Ind.   585. 


'J26 


INDIANA    PROBATE   LAW. 


§    428 


hearing  after  the  death  of  the  plaintiff  by  his  administrator,  who 
had  been  substituted  as  plaintiff  in  such  action,  the  right  of 
appeal  and  the  manner  of  taking  it  are  governed  by  the  civil  code 
and  not  by  this  statute.  It  is  not  a  matter  growing  out  of  or 
connected  with  a  decedent's  estate.^" 

Where  there  is  no  right  of  revivor  in  an  executor  or  admin- 
istrator there  can  be  no  right  of  appeal.-'' 

Where  an  action  has  been  commenced  before  the  death  of 
the  decedent,  and  has  been  prosecuted  to  a  final  judgment  by 
the  substitution  of  his  executor  or  administrator  as  a  party 
thereto,  an  appeal  from  such  judgment  is  not  governed  by  these 
statutes,  but  must  be  taken  according  to  the  provisions  of  the  civil 
code.^^ 

The  rule  is  that,  where  the  action  does  not  involve  an  exer- 
cise of  the  probate  jurisdiction  of  the  court,  or  is  one  which 
can  be  brought  in  a  court  having  no  probate  jurisdiction,  the 
appeal  must  be  taken  under  the  provisions  of  the  civil  code.-- 

E.  160;  May  v.  Hoover,  112  Ind. 
455,  14  N.  E.  472;  Holland  v.  Hol- 
land, 131  Ind.  196,  30  N.  E.  1075.  An 
appeal  from  a  proceeding  to  have  a 
will  construed  is  governed  by  the 
civil  code.  Simmons  v.  Beazel,  125 
Ind.  362,  25  N.  E.  344.  When  an  ac- 
tion is  not  necessarily  brought  in  the 
court  having  probate  jurisdiction, 
then  the  appeal  lies  under  the  civil 
code.  Mason  v.  Roll,  130  Ind.  260, 
29  N.  E.  1135.  In  a  proceeding  by  a 
creditor  of  a  legatee  to  have  a  legacy 
applied  on  a  debt  ow^ing  by  the  leg- 
atee, the  appeal  is  governed  by  the 
civil  code.  Koons  v.  Mellett,  121  Ind. 
585,  23  N.  E.  95,  7  L.  R.  A.  231n. 
Persons  made  parties  to  claims  filed 
against  estates  when  they  are  not 
jointly  bound  by  contracts  with  the 
decedent,  may  appeal  from  judgments 
rendered,  under  the  civil  code.  Clay- 
pool  V.  Gish,  108  Ind.  424,  9  N.  E. 
382. 


"Heller  v.  Clark,  103  Ind.  591,  3 
N.  E.  844. 

■"  Stout  V.  Indianapolis  &c.  R.  Co., 
41  Ind.  149. 

=HVright  V.  Manns,  111  Ind.  422, 
12  N.  E.  160;  May  v.  Hoover,  112 
Ind.  455.  14  N.  E.  472;  Mason  v. 
Roll,  130  Ind.  260,  29  N.  E.  1135; 
Holland  V.  Holland,  131  Ind.  196,  30 
N.  E.  1075. 

"Louisville  &c.  R.  Co.  v.  Etzler,  4 
Ind.  App.  31,  34  N.  E.  669.  Appeals 
from  judgments  in  actions  brought 
by  executors  or  administrators  to 
collect  debts,  or  assets,  due  the  es- 
tate, are  governed  by  the  provisions 
of  the  civil  code.  Rusk  v.  Gra}*-,  74 
Ind.  231;  Hillenberg  v.  Bennett,  88 
Ind.  540;  Walker  v.  Steele,  121  Ind. 
436,  22  N.  E.  142,  23  N.  E.  271.  If 
an  executor  or  administrator  is  sub- 
stituted in  a  suit  in  the  place  of  a 
decedent,  an  appeal  in  such  a  case 
will  be  governed  by  the  civil  code. 
Wright  V.  Manns,  111  Ind.  422,  12  N. 


428  APPEALS    IN    PROBATE    MATTERS. 


727 


An  appeal  from  a  proceeding  brought  by  an  executor  against 
the  heirs  and  legatees,  to  secure  a  construction  of  a  will,  is 
governed  by  the  civil  code.-^  And  the  same  rule  applies  to  a 
proceeding  brought  by  the  creditor  of  a  legatee  against  the 
legatee  and  the  executor  to  reach  money  in  the  hands  of  the 
executor  for  the  payment  of  a  debt  due  from  such  legatee.-^ 

An  action  brought  by  an  administrator  to  recover  possession 
of  assets  belonging  to  the  estate  is  not  an  action  growing  out  of 
the  settlement  of  the  estate,  and  an  appeal  in  such  action  is  gov- 
erned by  the  civil  code.-^  An  action  to  secure  the  probate  of  an 
alleged  will  is  an  action  preliminaiy  to  the  settlement  of  an 
estate,  and  as  the  effect  of  such  action  is  to  determine  the 
property  rights  of  living  persons  by  establishing  the  evidence 
thereof,  an  appeal  in  such  case  should  be  taken  under  the  civil 
code.-® 

An  appeal  from  the  judgment  in  an  action  on  the  bond  of  an 
administrator  is  governed  by  the  civil  code  and  not  by  the  act 
relating  to  the  settlement  of  decedents'  estates."' 

Where  an  action  is  brought  by  an  administrator  for  the  pur- 
pose of  securing  an  order  to  sell  real  estate  of  the  decedent  to 
make  assets  to  pay  debts,  and  as  an  incident  to  that  purpose,  he 
asks  to  set  aside  a  conveyance  made  by  such  decedent  as  fraudu- 
lent, an  appeal  must  be  taken  under  the  decedents'  act.-^  But 
if  the  main  and  only  purpose  of  the  action  was  to  set  aside  a 
fraudulent  conveyance  the  appeal  would  be  governed  by  the  civil 
code. 

Where  the  remedy  sought  by  or  against  an  estate  is  not  pro- 
vided by  the  probate  procedure  act,  but  must  be  enforced  under 
the  civil  code,  the  appeal  must  be  taken  under  that  code.  The 

=^  Simmons  v.  Beazel,  125  Ind.  362,  =«  Morell   v.    Morell,    157   Ind.    179, 

25  N.  E.  344.  60  N.  E.  1092. 

'*Koons    V.    Mellett,    121    Ind.    585,  =^  Rogers    v.    State,    26    Ind.    App. 

23  N.  E.  95,  7  L.  R.  A.  231n.  144,  59  N.  E.  334;  Cravens  v.   State, 

='  Mark  V.  North,   155  Ind.  575,  57  46  Ind.  App.  347,  92  X.  E.  552. 

N.  E.  902.  ^Galentine  v.  Wood,  137  Ind.  532, 

35  K.  E.  901. 


/-' 


INDIANA    PROBATE    LAW.  §    429 


fact  that  the  settlement  of  a  decedent's  estate  has  a  remote  con- 
nection with  the  remedy  can  make  no  difference.-" 

§  429.  To  what  court  appeals  must  be  taken. — The  at- 
tempt of  the  legislature  of  1911'"  to  change  the  jurisdiction  of 
the  appellate  court  having  been  rendered  abortive  by  the  decision 
of  the  Supreme  Court  in  Ex  Parte  France,^'  the  jurisdiction  of 
that  court  as  set  out  in  the  act  of  1891  and  subsequent  amend- 
ments thereto  remains  in  force.^-  Such  jurisdiction  being  now  the 
same  as  before  the  passage  of  the  Act  of  1911. 

By  the  law  as  it  now  is  jurisdiction  of  appeals  in  probate  mat- 
ters, in  the  first  instance,  is  in  the  appellate  court  except  where 
the  title  to  real  estate  comes  in  question. 

Of  the  two  courts  of  higher  appellate  jurisdiction,  the  Supreme 
Court  and  the  appellate  court,  the  latter  takes  jurisdiction  in 
matters  relating  to  the  settlement  of  decedents'  estates,  i.  All 
cases  wherein  claims  against  decedents'  estates  are  allowed  or 
allowance  refused.  2.  All  cases  wherein  exceptions  are  filed 
to  reports  of  administrators,  executors  or  guardians.  3.  All 
cases  wherein  orders  or  judgments  are  given  refusing  to  appoint 
administrators,  executors  or  guardians.  4.  All  cases  wherein 
orders  or  judgments  are  made  or  given  removing  or  refusing 
to  remove  administrators,  executors  or  guardians.  And  in  all 
such  matters  within  the  jurisdiction  of  that  court  its  decisions 
shall  be  final,  except  as  controlled  and  limited  by  the  right  of 
transfer  to  the  Supreme  Court. ^^ 

Such  jurisdiction  in  probate  matters  as  is  not  specifically  con- 
ferred is  carried  into  the  appellate  court  by  a  residuary  clause 
of  another  section  of  the  statute,  in  which,  after  specifying  in 
what  matters  the  Supreme  Court  shall  have  jurisdiction,  it  is  pro- 
vided that  "all  appealable  cases  other  than  those  herein  men- 
tioned, shall  be  taken  to  the  appellate  court. "^* 

=*  Roach  V.   Clark,   150   Ind.   93,   48  ''Ex  parte  France,  —  Ind.  — ,  95 

N.  E.  796,  65  Am.  St.  353;  Harrison  X.  E.  515. 

Nat.    Bank    v.    Culbertson,    147    Ind.  "Burns'  R.  S.   1908,  §§  1382,  1392. 

611,  45  N.  E.  657.  47  N.  E.  13.  '^Burns'  R.  S.  1908.  §  1394. 

'"Acts  1911.  p.  201.  "Burns-  R.  S.  1908,  §  1392. 


§    430  APPEALS    IN    PROBATE    MATTERS.  729 

In  appeals  from  the  allowance  or  disallowance  of  claims 
against  estates,  the  jurisdiction  is  in  the  appellate  court  regardless 
of  the  amount  in  controversy.^^ 

Appeals  to  said  court  shall  be  taken  in  the  manner  and  with 
the  effect  and  subject  to  the  same  limitations  and  restrictions 
provided  by  law  in  cases  of  appeals  to  the  Supreme  Court,  and 
said  court  and  judges  thereof,  in  vacation  or  recess,  shall  have 
the  authority  possessed  by  the  Supreme  Court  or  the  judges 
thereof,  in  vacation  or  recess,  to  stay  proceedings,  issue  in- 
junctions and  mandates,  and  to  do  other  acts  and  things  in  aid 
of  the  exercise  of  its  jurisdiction  or  to  enforce  its  judgments  or 
orders.  The  pleadings  and  practice  and  proceedings  in  cases 
appealed  to  said  court  shall  be  the  same  as  provided  by  the 
Supreme  Court,  so  far  as  the  same  are  applicable  and  not  in- 
consistent with  this  act.^® 

The  claims  to  be  allowed  or  disallowed  named  in  this  statute 
are  such  claims  as  are  required  to  be  filed  against  decedents' 
estates  and  entered  upon  the  allowance  docket  and  transferred  to 
the  issue  docket  of  the  court  for  trial. ^^ 

In  taxing  costs  against  the  parties  to  such  appeal  the  same 
rules  shall  be  obsen^ed  as  in  cases  of  appeals  from  justices  of  the 
peace  to  the  circuit  courts.^* 

§  430.  As  to  parties  to  appeals. — The  statute  provides  that 
any  person  who  is  aggrieved,  desiring  such  appeal,  may  take  the 
same  in  his  own  name  without  joining  any  other  person.^®  But 
all  adverse  parties  must  be  made  appellees,  that  is  all  parties 
adverse  to  the  appellant  in  the  court  below."  An  administrator, 
who  in  his  individual  capacity,  appeals  from  an  order  of  the 
court  fixing  his  allowance  for  services  as  such  administrator, 
must  make  himself,  as  administrator  of  the  estate,  a  party  ap- 

""  Ray  V.  :Moore,  154  Ind.  368,  56  N.  ''  Burns'   R.    S.    1908,   §  2979.     See 

E.  841.  §  1796  for  costs  on  appeal  from  jus- 

'^  Burns'  R.  S.  1908,  §  1416.  tices  of  the  peace. 

^  Rauh   V.   Weis,    133   Ind.   264,   32  ^  Burns'  R.  S.  1908,  §  2978. 

X.   E.   880 ;    Ex  parte    Sweeney,    126  '"  Kuhn  v.   American   &c.   Ins.   Co., 

Ind.    583,    27    N.    E.    127;    Baker    v.  160  Ind.  356,  66  N.  E.  890. 
Groves,  126  Ind.  593,  26  N.  E.  1076. 


730  INDIANA  PROBATE  LAW.  §  43O 

pellee  to  such  appeal."  It  is  an  elementan-  rule  in  appellate 
proceedings  that  all  the  parties  to,  and  affected  by,  the  judgment 
appealed  from  must  be  actually  or  constructively,  included  in 
the  appeal,  upon  the  principle  that  those  only  before  the  appellate 
court  are  l)Ound  by  the  appeal,  and  that  hence  the  inclusion  of  all 
the  parties  to  the  judgment  appealed  from  is  necessary  to  confer 
complete  jurisdiction  upon  the  latter  court/"  So  where  a  fund 
is  in  court  for  distribution  the  claimants  of  the  fund  may,  in 
some  instances,  be  affected  by  a  judgment  awarding  part  of  it  to 
one  of  their  number,  and  if  so,  all  affected  should  be  parties." 
And  if  any  such  fund  is  in  the  hands  of  an  administrator,  he  is 
a  necessary  party  to  an  appeal  from  an  order  of  distribution.'** 
Where  parties  on  appeal  are  named  in  the  assignment  of  errors 
as  they  are  named  in  all  the  proceedings  in  the  court  l^elow,  this 
will  be  sufficient  though  they  may  not  be  named  correctly.^'' 

It  is  a  rtile,  both  of  the  Supreme  and  appellate  courts,  that  the 
assignment  of  errors  shall  contain  the  full  names  of  all  the  parties, 
and  failing  this  the  appeal  will  be  dismissed.  Under  this  rule 
naming  one  simply  as  "executor"  or  "administrator"  is  not  suffi- 
cient to  constitute  him  a  party  to  an  appeal  in  his  fiduciary  ca- 
pacity.    AMicre  persons  sue  or  are  sued  in  a  representative  or 

■"  Moore  v.  Ferguson,  163  Ind.  395,  distinct    persons.     The   appeal   mani- 

72  N.  E.  126.  festly  is  to  protect  his  individual  in- 

In     this     case     the     court     saj'-s :  terest,    and    cannot    in    any    manner 

"Jonathan    J.    Moore,    personally,    is  conduce  to  the  interest  of  the  estate 

the    only    person,    under    the    facts,  of    the    decedent.      This    certainly    is 

interested   in   securing  a   reversal   of  obvious.     Case  v.  Nelson,    (1899)   22 

the  judgment,  while,  upon  the  other  Ind.   App.  22,    [52  N.   E.   176]."    An 

hand,  the  estate  of  Willis  E.  Moore  administrator   cannot   appeal    from   a 

is  interested  in  maintaining  it  as  ren-  ruling  by  which  the  estate  has  been 

dcred    in    the    lower    court.      Under  benefited.     Richey    v.    Cleet,    46    Ind. 

these    circumstances    the    interest    of  App.  326,  92  N.  E.  175. 

Moore  as  an  individual  and  the  in-  *'  Hunderlock    v.    Dundee    &c.    Co., 

terest  of   the   estate  which   he   seeks  88  Ind.  139. 

to  represent  as  administrator  are  an-  ^  Elliott  Appellate  Pro.,  §  140. 

tagonistic  to   each  other.     Moore  as  **  Paxton    v.    Tyler,    20    Ind.    App. 

administrator     of     the     estate     and  455,  50  N.  E.  45. 

IMoore  in  his  own  right  or  person  in  "JeflFries  v.  Orndorf,  44  Ind.  App. 

a   legal   sense   are   two   separate   and  225,  88  X.  E.  958. 


§431  APPEALS    IN    PROBATE    MATTERS.  731 

official  capacity   the   rule   requires   that   they  shall   be  properly 
described  as  such  representatives  or  fiduciaries.*'^ 

The  test  by  which  to  determine  who  should  be  made  an  appel- 
lee in  an  appeal  is,  has  the  party  an  interest  in  maintaining  the 
judgment  from  which  the  appeal  is  prosecuted?*' 

In  one  case  an  administrator  filed  a  petition  for  an  order  to 
sell  real  estate  to  pay  an  allowed  claim  secured  by  a  lien  on  the 
land.  Other  creditors  were  made  parties  and  filed  a  cross-com- 
plaint attacking  the  allowed  claim  and  the  validity  of  the  lien. 
On  the  hearing  the  court  set  aside  the  allowance.  On  appeal  it 
was  held  that  the  administrator  was  a  necessary  party  to  the 
appeal."^  In  an  action  for  the  construction  of  a  will  where  all  in- 
terested persons,  as  well  as  the  executor,  who  was  also  a  legatee, 
were  made  parties,  the  executor  in  his  representative  capacity,  has 
no  right  of  appeal. *^^ 

§431.  Time  for  perfecting  appeals. — The  statute  now  re- 
quires the  transcript  on  appeal  to  be  filed  in  the  court  to  which 
the  appeal  is  taken  within  ninety  days  after  filing  the  appeal 
bond,  and  requires  the  appeal  bond  to  be  filed  within  ten  days 
after  the  decision  complained  of  is  made.*'  Thus  making  the 
extreme  limit  in  which  transcripts  may  now  be  filed  one  hundred 
days  instead  of  forty  as  under  the  old  statute.  Ten  days  after 
the  decision  complained  of  has  been  made  the  person  aggrieved 
must  have  filed  an  appeal  bond,  where  such  bond  is  required,  and 
within  ninety  days  after  the  bond  is  filed  the  transcript  must  be 
filed  in  the  appellate  court. 

Filing  the  bond  before  the  expiration  of  the  ten  days  allowed, 
however,  will  not  shorten  the  time  for  filing  the  transcript. ^° 

« Whisler  v.  Whisler,  162  Ind.  136,  ■**»  Murphey    v.    Murphey,    174    Ind. 

67  X    E    984    70  N.  E.  152;  Bender  426,  92  N.  E.  165. 

V.  State,  -  Ind.  -,  95  N.  E.  305.  «  Burns'  R.  S.  1908,  §  2978. 

*^Ewb'ank's   Manual,    §  149;    Elliott  ^"Simons   v.   Simons,   129  Ind.  248, 

App.  Proc,  §  160;  Whisler  v.  Whis-  28    N.    E.    702.      Parties    should    be 

ler,  162  Ind.  136,  67  N.  E.  984,  70  N.  given  notice  of  an  application  to  ex- 

£  'l52  tend  the  time  for  an  appeal,  but  the 

« Beaty  v.  Voris,   138  Ind.  265,  V?  appeal  will  not  be  dismissed  for  the 

j^    £  735  want  of  such  notice  when  both  par- 


J2i2  INDIANA    PROBATE    LAW.  §    43 1 

Where,  under  this  statute,  an  appeal  is  taken  by  an  executor 
or  administrator,  he  not  being  required  to  tile  any  bond,  in 
what  time  lie  shall  file  the  transcript  in  the  Supreme  Court,  is 
not  explicitly  stated  in  this  statute.  The  statute  requires  that 
the  transcript  must  be  filed  in  the  Supreme  Court  within  ninety 
days  after  filing  the  bond. 

The  court  in  one  case  where  this  point  was  raised  held  that : 
'Tn  the  sections  of  the  statute  above  referred  to,  the  legislative 
intent  is  clearly  manifest  that,  in  every  case  where  an  appeal 
may  be  taken  to  this  court  from  any  decision  of  the  circuit  court, 
or  judge  thereof  in  vacation,  in  regard  to  any  matter  connected 
with  a  decedent's  estate,  the  transcript  must  be  filed  in  this 
court,  at  the  latest,  within  twenty  (now  ninety)  days  after  the 
decision  complained  of  was  made,  unless  for  good  cause  shown 
this  court  may  direct  that  the  appeal  may  be  perfected  after 
the  expiration  of  that  time,  and  within  one  year  after  such 
decision.  The  precise  question  here  presented  has  never  been 
considered  by  this  court  in  any  of  its  previous  decisions,  but 
we  do  not  doubt  the  correctness  of  our  conclusions.  The  appeal 
in  this  case  was  not  taken  in  conformity  with  the  requirements 
of  the  statute,  and  the  appellee's  motion  to  dismiss  it  must  be 
sustained."''^ 

The  case  of  Bender  v.  Wampler,  84  Ind.  172,  and  others'-  are 
based  upon  the  statutes  of  1876,"  in  which  no  time  was  fixed 

ties  are  brought  into  court.     Duncan  the    transcript    was    required    to    be 

V.  Gainey.  108  Ind.  579,  9  N.  E.  470.  filed    in    the    Supreme    Court   within 

A   second  motion  to   dismiss   an  ap-  twenty   days   after   the   decision   was 

peal  will  not  be  entertained,  although  made,  unless  the  time  for  appeal  was 

the   ruling  on  the  prior  motion  was  extended.     Miller   v.    Carmichael,   98 

erroneous.      Walker    v.    Heller,    104  Ind.  236.     Under  the  statute  of  1881, 

Ind.  327,  3  N.  E.  114.  the    transcript    was    required    to    be 

""Yearley   v.    Sharp.    96    Ind.    469;  filed    in    the    Supreme    Court   within 

Heller  v.  Clark,  103  Ind.  591,  3  N.  E.  ten  days  after  the  filing  of  the  bond. 

844.     After  submission  of  a  cause  it  Browning  v.  McCracken,  97  Ind.  279. 

is  too  late  to  move  for  the  dismissal  ^  Bake  v.  Smiley,  84  Ind.  212 ;  Sew- 

of  the  cause  for  want  of  an  appeal  ard   v.    Clark,   67    Ind.   289;    Bell   v. 

bond.     West  v.   Cavins,  74  Ind.  265.  Mousset,  71   Ind.  347;  West  v.  Cav- 

When   an   executor   or   administrator  ins,  74  Ind.  265. 

appealed  under   the   statute   of   1881,  "^  2  R.  S.  1876,  p.  557. 


§431  APPEALS    IN    PROBATE    MATTERS.  733 

for  the  filing  of  the  transcript,  as  in  this  statute.  These  cases 
upon  this  point  may,  therefore,  be  no  longer  considered  as  law. 
The  old  statute  provided  that  the  bond  should  be  filed  in  thirty 
days  after  the  rendition  of  the  judgment,  but  it  did  not  limit 
the  time  for  filing  the  transcript,  and  under  this  statute  it  was 
held  that  an  administrator  had  a  year  in  which  to  file  a  tran- 
script. But  the  present  statute  fixes  a  time  in  which  such  tran- 
script must  be  filed,  and  is  applicable  alike  both  to  executors 
and  administrators,  as  well  as  all  other  persons  aggrieved.^*. 

This  section  of  the  statute  not  only  controls  the  time  in  which 
the  appeal  bond  shall  be  filed,  but  the  time  in  which  the  tran- 
script must  be  filed  and  the  appeal  perfected.  The  time  given 
within  which  to  file  the  transcript  is  the  limit  of  time  for  the 
perfection  of  the  appeal  unless  for  "good  cause  shown"  the 
appellate  court  sees  fit  to  extend  such  time,  not  longer  than  one 
year  after  the  decision  complained  of  is  rendered. 

The  statute  allows  full  one  hundred  days  within  which  to  per- 
fect the  appeal,  and  the  fact  that  the  appellant  files  his  bond 
in  less  than  ten  days,  will  not  limit  the  time  for  filing  the  tran- 
script. The  law  gives  the  same  time  to  both  parties.  An  ex- 
ecutor or  administrator  is  not  required  to  file  a  bond,  yet  he 
may  take  the  full  one  hundred  days  for  perfecting  an  appeal, 
and  the  opposite  party  is  entitled  to  the  same  time.^^ 

Where  an  appeal  has  not  been  perfected  within  the  time  pre- 
scribed, and  in  compliance  with  the  provisions  of  this  statute 
such  appeal  will  be  dismissed.^® 

"Miller     v.     Carmichael,     98     Ind.  transcript  must  be  filed  within  thirty 

236.     Under  this  section,  as  amended,  days.     This  case  is  not  in  harmony 

the  appeal  bond  must  be  filed  within  with    the    decision   in    Simons   v.    Si- 

ten  days  after  the  decision  is  made,  mons,  129  Ind.  248,  28  N.  E.  702. 

and   the   transcript   must  be   filed   in  » Simons  v.   Simons,   129  Ind.  248, 

the  Supreme  Court  within  thirty  days  28  N.  E.  702.     See  Campbell  v.  Hor- 

after   filing  the  bond,  when  there   is  ner,  12  Ind.  App.  86,  39  N.  E.  768. 

no   extension   of  time   for  taking   an  =«  Bollenbacher    v.    Whisnand,     148 

appeal.      Rinehart   v.    Vail,    103    Ind.  Ind.  377,  47  N.  E.  706;  Harrison  Nat. 

159,   2   X.    E.    330.     In    Campbell   v.  Bank    v.    Culbertson,    147    Ind.    611, 

Horner,    12   Ind.   App.   86,  39   X.   E.  45  X.  E.  657,  47  N.  E.  13 ;  Mumf ord 

768,  it  was  held  that  where  an  appeal  Co.   v.   Terry,   43   Ind.   App.   339,  87 

was    taken   bv   an   administrator   the  X.  E.  253.   In  this  case  the  court  says : 


734  INDIANA  PROBATE  LAW.  §  432 

§432.  Appeals  in  certain  cases.— It  was  held  in  a  case 
where  an  administrator  refused  to  pay,  out  of  money  in  his 
hands  received  from  a  sale  of  a  decedent's  real  estate,  sufficient 
to  satisfy  the  liabilities  of  a  finn  to  which  the  decedent  belonged, 
under  an  order  of  the  court  obtained  by  the  sufviving  partner, 
that,  notwithstanding  the  form  of  the  proceeding  brought  to  com- 
pel such  payment,  the  substance  being  matter  of  strictly  probate 
jurisdiction,  an  appeal  from  a  final  order  therein  must  be  taken 
under  this  statute." 

Where  a  widow  makes  application  to  the  court  for  an  order 
upon  the  administrator  of  her  deceased  husband,  to  pay  to  her 
the  proceeds  of  real  estate  of  such  decedent  sold  by  such  ad- 
ministrator, to  make  up  to  her  the  full  amount  of  her  statutory 
allowance,  and  such  application  is  contested  by  creditors  who 
claim  the  fund  b>-  reason  of  judginent  liens  against  such  real 
estate;  from  a  final  order  of  the  court  upon  such  application, 
an  appeal,  if  taken,  is  governed  by  this  statute." 

A  guardian  ad  litem  of  infant  defendants  cannot  appeal  to 
the  Supreme  Court  in  In's  own  name.^** 

Prior  to  the  adoption  of  the  present  statute,""  no  appeal  to 
the  Supreme  Court  would  lie  from  the  order  or  action  of  the 
circuit  court  in  approving  or  disapproving  the  report  of  any 
executor  or  administrator  in  partial  settlement  of  an  estate.*'^ 

"These    sections    are    certainly    too  court  within  ninety  days  after  filing 

plain    to    need    interpretation.      They  the  bond,  or  come  before  this  court 

provide  specifically  how  such  appeals  within   one  year  after   such   decision 

shall  be  taken,  and  this  excludes  any  and    show    good    cause    and    obtain 

other  mode.     The  reason  is  obvious,  leave   to   appeal.     Lindley  v.    Darnall 

Estates  should  not  be  tied  up  in  vex-  (1900),  24  Ind.  App.  399,   [56  N.  E. 

atious    litigation,    and    persons    suing  861]." 

an  estate  should  not  be  permitted  to  "  Bennett  v.  Bennett,  102  Ind.  86,  1 

do  as  appellant  has  sought  to  do  in  X.  E.  199. 

this     case— withhold    its    appeal     for  '*  Browning  v.  McCracken,  97  Ind. 

one  year  after  the  decision  is  made,  279. 

without  adequate  excuse.     Appeals  of  "•"  Harlan  v.  Watson,  39  Ind.  393. 

this  character  can  only  be  had  either  ''*  Burns'  R.  S.  1908,  §  2906. 

by  filing  the  proper  bond  in  the  cir-  "  Goodwin     v.     Goodwin,    48     Ind. 

cuit  court  within  ten  days  after  the  584;  Wood  v.  Wood,  51  Ind.  141. 
decision,    and    the    transcript    in    this 


§    432  APPEALS    IN    PROBATE    MATTERS.  735 

So  long"  as  a  claim  against  an  estate  is  pending  in  the  Supreme 
Court  on  appeal,  the  final  settlement  of  such  estate  must  be 
delayed  unless  some  legal  provision  is  made  for  the  payment  of 
the  claim  if  finally  adjudged  against  the  estate.*'" 

As  the  proceeding  for  the  sale  of  a  decedent's  real  estate  by 
his  executor  or  administrator  is  provided  for  and  regulated 
exclusively  by  the  act  for  the  settlement  of  decedents'  estates,  an 
appeal  by  any  party  aggrieved  by  any  decision  in  such  proceed- 
ing must  be  taken  under  the  provisions  of  these  statutes.  The 
civil  code  makes  no  provision  for  such  proceedings,  and  they 
are  not  within  the  ordinary  common-law  jurisdiction  of  the 
circuit  court.  Under  the  above  section  of  the  statute  an  appeal 
bond  must  be  filed  in  ten  days  from  the  date  of  the  decision, 
except  when  the  appeal  is  taken  by  an  executor  or  administrator, 
in  which  case  no  bond  is  required,  and  the  transcript  must  be 
filed  within  ninety  days  from  the  date  of  filing  the  bond  unless 
for  good  cause  shown  the  Supreme  Court  shall  direct  such  appeal 
to  be  granted  within  one  year.''^ 

And  where  an  executor  or  administrator  brings  an  action  to 
set  aside  a  fraudulent  conveyance  of  lands,  for  the  purpose  of 
subjecting  them  to  sale  for  the  payment  of  his  decedent's  debts, 
an  appeal  from  a  judgment  in  such  action  is  governed  by  the 
statutes  under  consideration." 

"=  Heaton  v.  Knowlton,  65  Ind.  255.  35   N.    E.   901.     Under   the   act   con- 

•"Rinehart  v.  Vail,   103  Ind.   159,  2  cerning  decedents'  estates  in  force  in 

N.   E.  330;   Beaty  v.  Voris,   138  Ind.  1876,    an    administrator  might   appeal 

265,    Zl    N.    E.    785;    §§  2977,    2978,  within   one  year   from   the   judgment 

Burns'    R.    S.    1908,    govern   where    a  against  him  on  a  petition  to  sell  real 

widow  applies  for  an  order  upon  the  estate     to     pay     debts.       Hunter     v. 

administrator    of    her    deceased    hus-  French,  86    Ind.   320.     The   proceed- 

band,  requiring  him  to  pay  to  her  the  ing  for  the  sale  of  real  estate  by  an 

proceeds  of  real  estate  to  make  up  to  administrator  is  regulated  exclusively 

her  a  deficit  of  the  five  hundred  dol-  by  the  act  for  the  settlement  of  de- 

lars  allowed  to  her  by  law,  and  mak-  cedents'  estates,  and  an  appeal  by  an 

ing   judgment    creditors    parties,    and  aggrieved  party  must  be  taken  under 

where  the  administrator  by  leave  has  the  provisions  of  such  act.     Rinehart 

paid  the  money  into  court,  and   has  v.   Vail,    103  Ind.    159,  2  N.   E.  330; 

been  discharged,  and  an  appeal  taken.  Beaty  v.  Voris,  138  Ind.  265,  Zl  N.  E. 

Browning  v.  McCracken,  97  Ind.  279.  785. 
"Galentine  v.  Wood,  137  Ind.  532, 


736  INDIANA  PROBATE  LAW,  §  433 

Whenever  the  claim  or  right  presented  for  recovery  has  been 
against  the  estate  of  the  decedent  it  has  been  uniformly  held  that 
the  practice  in  appealing  was  that  prescribed  by  the  statutes 
under  consideration.'^^  On  the  other  hand  it  has  been  held  with 
like  uniformity  that  if  the  cause  of  action  or  demand  is  in  favor 
of  the  estate,  and  the  procedure  for  its  enforcement  is  not  pre- 
scribed by  the  statutes  relating  to  the  settlement  of  decedents' 
estates,  the  practice  on  appeals  is  that  prescribed  by  the  civil 
code/'*^  There  is  also  a  class  of  cases  holding  that  where  pending 
an  action,  the  death  of  a  party  is  suggested  and  his  administrator 
is  substituted  the  appeal  from  the  decision  therein  is  governed 
by  the  provisions  of  the  decedents'  estates  act.°^  These  cases 
seem  to  establish  conclusively  that  it  is  not  every  decision  grow- 
ing out  of  a  matter  connected  with  the  settlement  of  a  decedent's 
estate  that  is  appealable  under  the  act  for  the  settlement  of  a 
decedent's  estate.  In  addition  there  is  still  another  class  of  cases 
which  hold  that  where  the  remedy  is  given  and  the  procedure  is 
prescribed  by  the  decedents'  act  that  the  right  of  appeal  given  in 
that  act  must  be  pursued. '^'^ 

§  433.  When  an  appeal  bond  must  be  filed. — The  appeal 
bond  required  in  the  preceding  section  shall  be  filed  within  ten 
days  after  the  decision  complained  of  is  made,  unless,  for  good 
cause  shown,  the  court  to  which  the  appeal  is  prayed  shall  direct 

•''Bennett   v.   Bennett,   102   Ind.  86,  12   N.   E.    160;   May  v.   Hoover,   112 

1  N.  E.  199 ;  Miller  v.  Carmichael,  98  Ind.   455,   14  N.   E.   472 ;   Holland  v. 

Ind.  236;  Harrison  Nat.  Bank  v.  Cul-  Holland,  131  Ind.  196,  30  N.  E.  1075; 

bertson,   147  Ind.  611,  45  N.  E.  657,  Harrison    Nat.    Bank    v.    Culbertson, 

47  N.  E.  13;  Ten  Brook  v.  Maxwell,  147  Ind.  611,  45  N.  E.  657,  47  N.  E. 

5  Ind.  App.  353,  32  N.  E.  106.  13 ;    Louisville  &c.   R.   Co.  v.   Etzler, 

«"  Mason  v.   Roll,   130  Ind.  260,  29  4  Ind.  App.  31,  34  N.  E.  669. 

N.  E.   1135;   Simmons  v.  Beazel,  125  "' Galentine  v.  Wood,  137  Ind.  532, 

Ind.   362,   25    N.   E.   344 ;   Walker   v.  35  N.  E.  901 ;  Webb  v.  Simpson,  105 

Steele,  121  Ind.  436,  22  N.  E.  142,  23  Ind.  327,  4  N.  E.  900;  Koons  v.  Mel- 

N.  E.  271 ;  Heller  v.  Clark,  103  Ind.  lett,  121  Ind.  585,  23  N.  E.  95,  7  L.  R. 

591,    3    N.    E.    844;    Harrison    Nat.  A.  231n;   Rinehart  v.  Vail,   103  Ind. 

Bank  v.  Culbertson,  147  Ind.  611,  45  159,  2  N.  E.  330;  Harrison  Nat.  Bank 

N.   E.  657,  47  N.  E.   13;   Merritt  v.  v.  Culbertson,  147  Ind.  611,  45  N.  E. 

Straw,  6  Ind.  App.  360,  33  N.  E.  657.  657.  47  N.  E.  13. 

•"Wright   v.   Manns,    111   Ind.  422, 


433 


APPEALS    IN    PROBATE    MATTERS. 


737 


such  appeal  to  be  granted,  on  the  fihng  of  such  bond  within  one 
year  after  such  decision.'"'*  And  with  the  exception  of  the  ex- 
ecutor or  administrator  any  one  desiring  an  appeal  must  pray 
the  same  and  give  the  bond  required  by  this  statute. '° 

And  it  has  been  said  that  where  an  appeal  bond  is  a  necessary 
step  in  perfecting  an  appeal,  its  absence  is  sufficient  ground  for 
dismissing  the  appeal.'^ 

It  was  held  that  the  above  statute,  as  to  the  filing  of  a  bond, 
was  mandatory,  a  step  imperatively  required,  and  constituting  a 
necessar}'  part  of  the  appeal;  and  where  it  appeared  that  no 
bond  had  been  filed  the  appeal  would  be  dismissed.'^  This  doc- 
trine, however,  seems  to  be  out  of  harmonj^  with  that  of  some 
of  the  earlier  cases,  in  which  it  was  held  that  the  bond  being  for 
the  benefit  and  protection  of  the  appellee,  it  might  be  waived,'^ 
and  that  where  a  case  has  been  submitted  by  agreement  it  is  too 
late  to  object  that  no  appeal  bond  has  been  filed  by  the  appellant.^'* 

The  time  for  filing  the  bond  begins  to  run  from  the  date  of 
the  entry  of  the  final  action  of  the  court  in  the  particular  matter 


•^  Burns'  R.  S.  1908,  §  2978.  This 
statute  is  mandatory,  and  under 
them  an  appeal  bond  must  be  filed, 
except  where  the  administrator  ap- 
peals, within  ten  days  from  the  date 
of  the  decision,  unless,  for  good 
cause  shown,  the  Supreme  Court 
shall  direct  such  appeal  to  be  granted, 
on  the  filing  of  a  bond,  within  one 
year;  otherwise  the  appeal  will  be 
dismissed.  Rinehart  v.  Vail,  103  Ind. 
159,  2  N.  E.  330;  Merryman  v.  Dif- 
fenbaugh   (Ind.  App.),  38  N.  E.  72. 

™  Berry  v.  Berry,  22  Ind.  275 ;  Sta- 
ley  V.  Dorset,  11  Ind.  367.  The  ap- 
peal bond  shall  be  filed  within  ten 
days  after  the  decision  complained 
of  is  made.  The  fact  that  the  appel- 
lant files  his  bond  within  the  ten  days 
will  not  limit  the  time  for  filing  the 
transcript.  See  Rinehart  v.  Vail,  103 
Ind.    159,   2    N.    E.    330;    Simons    v. 


Simons,  129  Ind.  248,  28  N.  E.  702. 

''Ten  Brook  v.  Maxwell,  5  Ind. 
App.  353,  32  N.  E.  106;  Law  v.  Nel- 
son, 14  Col.  409,  24  Pac.  2;  Mc- 
Lane  v.  Russell,  29  Tex.  127;  Clinton 
V.  PhiUips,  7  T.  B.  Mon.  (Ky.)  117; 
Thompson  v.  Thompson,  24  Wis. 
515;  French  v.  Snell,  Zl  Me.  100; 
King  V.  McCann,  25  Ala.  471. 

"Ten  Brook  v.  Maxwell,  5  Ind. 
App.  353,  32  N.  E.  106;  Rinehart  v. 
Vail,  103  Ind.  159,  2  N.  E.  330; 
Webb  V.  Simpson,  105  Ind.  327,  4  N. 
E.  900. 

"Pedrick  v.  Post,  85  Ind.  255; 
West  V.  Cavins,  74  Ind.  265;  Gilbert 
V.  Welsch,  75  Ind.  557.  But  see  Sew- 
ard V.  Clark,  67  Ind.  289;  Bell  v. 
Mousset,  71  Ind.  347;  Critchell  v. 
Brown,  72  Ind.  539. 

'*  Post  V.  Pedrick,  85  Ind.  255 ;  West 
V.  Cavins,  74  Ind.  265. 


47 — Pro.  Law. 


738  INDIANA    PROBATE    LAW.  §    433 

appealed  from.'^  An  appeal  cannot  be  taken,  except  upon  leave 
of  the  appellate  tribunal,'*'  without  the  filing  of  an  appeal  bond 
and  the  transcript  within  the  time  prescribed  in  the  statute.^' 

Where  the  judgment  is  against  an  executor  or  administrator 
for  wasting  or  converting  the  assets  of  the  estate,  in  an  appeal 
by  him  from  such  judgment  he  must  file  a  bond,  as  such  appeal 
is  not  in  the  interest  of  the  estate.  The  right  of  appeal  without 
bond  is  given  to  the  executor  or  administrator  in  a  representative 
capacity  with  a  view  of  protecting  the  estate.  When  the  interest 
of  the  administrator  is  adverse  to  the  estate  he  represents  a 
bond  should  not  be  dispensed  with.'^ 

While  the  statute  contemplates  the  filing  of  an  appeal  bond 
within  ten  days  after  the  decision  complained  of  is  rendered,  yet 
the  appellant  failing  to  file  the  bond  within  the  time  specified, 
may,  upon  showing  to  the  court  to  which  the  appeal  is  prayed, 
that  such  failure  was  for  good  reason  and  without  his  fault  or 
negligence,  be  permitted,  in  the  discretion  of  the  court,  to  file  his 
bond  within  a  year  from  the  decision  complained  of.'^ 

Where  such  appeal  has  not  been  taken  within  the  time  limited 
by  this  section  of  the  statute,  and  application  is  afterwards  made 
to  the  Supreme  Court  for  leave  to  appeal,  the  adverse  party 
is  entitled  to  notice  of  such  application;  but  if  leave  has  been 
granted  without  such  notice  and  the  parties  are  all  brought  into 
court,  the  matter  is  res  adjudicata,  and  a  motion  to  dismiss  the 
appeal  should  be  overruled.^" 

A  second  motion  to  dismiss  an  appeal  will  not  be  entertained 
although  the  ruling  on  the  first  motion  was  erroneous. ^^ 

"^  Galentine    v.    Brubaker,    147    Ind.  "  Case  v.  Nelson,  22  Ind.  App.  22, 

458,  46  N.  E.  903.  52  X.  E.  176. 

'"  §  434,  post.  "  Burns'  R.  S.  1908,  §  2978. 

"Lindley  v.   Darnoll,  24  Ind.  App.  ""Duncan  v.   Gainey,   108  Ind.  579, 

399,  56  N.  E.  861;  Vail  v.  Page,  —  9  X.  E.  470;  Browning  v.  McCrack- 

Ind.    —    93    N.    E.    705;    Jeffries    v.  en,  97  Ind.  279. 

Orndorf ,  44  Ind.  App.  225,  88  N.  E.  ""  Walker  v.  Heller,  104  Ind.  327,  3 

958;  Harrison  Nat.  Bank  v.  Culbert-  X.  E.  114. 
son,  147  Ind.  611,  45  N.  E.  657,  47  N. 
E.  13. 


§    434  APPEALS    IN    PROBATE    MATTERS.  739 

§  434.  Right  of  appeal  without  bond. — Executors,  admin- 
istrators and  guardians  may  have  an  appeal  and  stay  of  pro- 
ceedings in  the  court  below  without  giving  an  appeal  bond.^- 

In  any  appeal  prayed  for  by  an  executor  or  administrator 
from  the  decision  of  any  court,  or  judge  thereof  in  vacation, 
it  shall  not  be  necessaiy  for  such  person  to  file  an  appeal  bond.*^ 

These  sections  of  the  statute  expressly  authorize  executors 
and  administrators  to  appeal  without  filing  a  bond.  As  is  said 
in  one  case;  "The  theory  of  our  system  is  not  to  require  admin- 
istrators to  assume  personal  responsibility  in  such  cases;  other- 
wise many  meritorious  cases  would  remain  unprosecuted,  as  the 
mere  duty  of  an  administrator  would  scarcely  induce  him  to 
assume  such  liability,  *  *  *  and  in  appeals  by  such  persons 
no  bond  shall  be  required,  though  the  appeal  is  taken  from  a 
decision  in  favor  of  the  estate.  Thus  construed  the  statute 
adapts  itself  to  all  cases  and  enables  all  persons  acting  in  a 
fiduciary  capacity  to  appeal  upon  the  same  terms."*'*  And  where 
others  have  been  unnecessarily  made  parties  appellant  with  an 
executor  or  administrator,  such  appeal,  on  the  part  of  the  ex- 
ecutor or  administrator,  cannot  be  dismissed  for  a  failure  of 
these  third  parties  to  file  an  appeal  bond.*^ 

Section  687,  Burns'  R.  S.  1908,  above  set  out  applies  to  appeals 
by  executors  and  administrators  in  actions  governed  by  the  code  of 

*"  Burns'  R.  S.  1908,  §  687.  on  his  appeal,  in  the  Supreme  Court, 
'^  Burns'  R.  S.  1908,  §  298.  By  the  at  the  latest,  within  twenty  (now  one 
statutes  in  force  March  11,  1881,  an  hundred)  days  after  such  decision 
administrator  might  appeal  to  the  was  made,  unless,  "for  good  cause 
Supreme  Court  from  the  allowance  shown,"  such  time  has  been  extend- 
of  a  claim  without  bond,  and  file  the  ed  by  the  Supreme  Court.  Other- 
transcript  within  one  year.  Jones  v.  wise  a  motion  to  dismiss  the  appeal 
Jones,  91  Ind.  378.  Where  an  ad-  must  be  sustained.  Yearley  v. 
ministrator  considers  himself  ag-  Sharp,  96  Ind.  469;  McCurdy  v. 
grieved  by  a  decision  of  a  circuit  Love,  97  Ind.  62;  Miller  v.  Carmi- 
court,  or  judge  thereof  in  vacation,  chael.  98  Ind.  236;  Heller  v.  Clark, 
growing  out  of  any  matter  connected  103  Ind.  591,  3  N.  E.  844. 
with  a  decedent's  estate,  and  prose-  "Davis  v.  Huston,  84  Ind.  272; 
cutes  an  appeal  from  such  decision  Bake  v.  Smiley,  84  Ind.  212;  Ruch  v. 
to  the  Supreme  Court,  he  is  not  re-  Biery,  110  Ind.  444,  11  N.  E.  312. 
quired  to  file  any  appeal  bond;  but  he  '"Ruch  v.  Biery,  110  Ind.  444,  11 
must  file  a  transcript  of  the  record,  N.  E.  312;  Pate  v.  Moore,  19  Ind.  20. 


740  INDIANA  PROBATE  LAW.  §  435 

civil  procedure,  and  it  has  been  intimated,  though  not  decided, 
that  in  term  time  in  appeals  taken  by  them  in  such  actions  a  bond 
should  be  filed  and  the  failure  to  file  a  bond  as  required  by  §  679, 
Burns'  R.  S.  1908,  would  render  such  appeal  merely  a  vacation 
appeal.*" 

As  to  the  right  of  appeal  without  bond  one  eminent  author 
says:  "The  party  appealing  is  always  required  to  give  bond, 
except  in  cases  where  the  executor  or  administrator  appeals 
in  the  interest  of  the  estate  and  has  given  security  on  his  admin- 
istration bond.  An  executor  is  entitled  to  appeal  without  surety 
where  the  judgment  or  decree  is  to  affect  only  the  assets  of  the 
estate,  because  the  appeal  bond  would  bind  him  personally  and 
tend  to  render  him  liable  beyond  the  assets,  and  because  he  has 
already  given  a  general  bond;  but  where  he  is  in  a  situation  in 
which  a  personal  judgment  or  decree  can  be  rendered  against 
him  which  may  make  him  liable  out  of  his  own  funds,  he  is  no 
more  entitled  to  appeal  without  surety  than  any  other  person."" 

For  this  reason  an  executor  or  administrator  may  appeal  with- 
out bond  only  in  those  cases  where  the  appeal  is  in  the  interest 
of  the  estate  he  represents.** 

§  435.  Review  of  judgment. — A  complaint  to  review  the 
proceedings  and  judgment  upon  a  claim  against  a  decedent's 
estate  is  not  authorized  by  statute  in  this  state.  The  court  says, 
in  McCurdy  v.  Love,  97  Ind.  62 :  "The  statute  regulating  the 
settlement  of  decedents'  estates  contains  no  provision  author- 
izing the  filing  of  a  complaint  for  the  review  of  any  decision 
growing  out  of  any  matter  connected  with  such  an  estate  in  the 
court  where  such  decision  was  made  or  rendered ;  but  the  only 
statutory  remedy  of  the  party  aggrieved  by  any  decision  in  such 
a  cause  or  matter,  is  an  appeal  to  the  Supreme  Court."  And  as 
to  whether  the  provision  of  the  civil  code  in  relation  to  the 
review  of  judgments  in  civil  actions  can  be  held  applicable  to 

*^Stults  V.  Gibler,  146  Ind.  501,  45        *' Woerner      Am.      Law      Admin., 
N.   E.  340;   Holderman  v.  Wood,  34     §  546. 

Ind.  App.  519,  IZ  N.  E.  199.  ^  Case  v.  Nelson,  22  Ind.  App.  22, 

52  N.  E.  176. 


§    435  APPEALS    IN    PROBATE    MATTERS.  741 

orders  and  judgments  made  and  rendered  in  matters  connected 
with  a  decedent's  estate,  the  court,  in  the  same  case,  say:  "A 
complaint  for  the  review  of  any  judgment  or  decision  of  a  circuit 
court,  growing  out  of  any  matter  connected  with  decedents' 
estates,  is  not  authorized  by  the  statute  regulating  the  settlement 
of  such  estates,  and  the  provisions  of  the  civil  code,  for  the 
review  of  judgments  in  civil  actions,  cannot  be  held  applicable 
to  such  cases.  Any  other  conclusion  than  this  upon  the  point 
under  consideration,  would  render  nugatory  and  practically  annul 
the  limitations  and  restrictions  imposed  by  the  statute  upon  ap- 
peals to  this  court  from  the  judgment  or  decision  of  a  circuit 
court,  or  judge  thereof  in  vacation,  "growing  out  of  any  matter 
connected  with  a  decedent's  estate."  For  while  such  appeals 
must  be  perfected  at  the  latest,  under  the  statute,  within  twenty 
(now  one  hundred)  days  after  the  decision  complained  of  is 
made,  a  complaint  for  the  review  of  a  judgment  in  a  civil  action 
for  error  of  law  appearing  therein,  may  be  filed  under  the  civil 
code  at  any  time  within  one  year  after  the  rendition  of  the  judg- 
ment."^^ 

'"Zimmerman  v.  Love,  97  Ind.  602. 


CHAPTER  XXI. 

LIABILITY    OF    ESTATES    FOR    TAXES. 

§  436.  Liability  for  decedent's  taxes.       §  441.  Payment  of  taxes. 

437.  Where  should  be  assessed,  etc.       442.  When  taxes  should  be  paid. 

438.  Estates  in  hands  of  guardians,       443.  Sale  of  property  for  taxes. 

etc.  444.  Redemption  from  sale. 

439.  Location  of  the  property.  445.  Proceedings     when     purchaser 

440.  Statement,   interrogatories,   etc.  dit<;, 

§  436.  Liability  for  decedent's  taxes. — The  property  of  a 
decedent  in  the  hands  of  his  executor  or  administrator  is  liable  for 
all  taxes  which  have  accrued  against  it  during  the  lifetime  of  the 
decedent,  and  also  for  all  taxes  whicli  may  be  assessed  or  levied 
upon  the  personal  estate  in  his  hands  during  the  administration  of 
the  estate.  Such  taxes  are  a  charge  to  be  paid  out  of  the  personal 
property  in  the  hands  of  the  executor  or  administrator.^ 

All  taxes  against  the  real  estate  of  a  decedent  which  have  ac- 
crued prior  to  his  death  must  be  paid  by  his  executor  or  adminis- 
trator;' but  taxes  accruing  against  the  real  estate  after  the  death 
of  the  owner  must  be  paid  by  the  heirs  or  devisees.^  The  assess- 
ment, levy,  and  collection  of  a  decedent's  taxes  against  his  execu- 
tor or  administrator  relate  back  to  the  death  of  such  decedent, 
when  for  such  purposes  title  is  said  to  vest  in  such  officer.* 

Taxes  are  not  such  claims  as  the  law  requires  to  be  filed  against 
the  estate  of  the  decedent.  They  are  grouped  with  funeral  ex- 
penses and  expenses  of  administration  as  charges  to  be  paid  in 
due  course  of  administration. °  If  taxes  have  been  assessed  against 

'  §  291,  ante.  *  Sommers    v.    Boyd,    48    Ohio    St. 

=  Ring 'v.  Ewing,  47  Ind.  246;  Hen-  648,  29  N.  E.  497. 

derson  v.  Whitinger,  56  Ind.  131.  "Graham  v.   Russell,   152  Ind.   186, 

"Wilson  V.  White,  133  Ind.  614,  33  52  X.  E.  806;  Hildebrand  v.  Kinney, 

N.  E.  361,  19  L.  R.  A.  581.  172  Ind.  447.  87  X.  E.  832. 

742 


437 


LIABILITY    OF    ESTATES    FOR    TAXES. 


743 


property  in  the  hands  of  an  executor  or  administrator  prior  to 
final  settlement  of  the  estate,  and  are  not  due  at  the  time  of  such 
settlement  such  officer,  to  escape  personal  liability  for  such  taxes, 
should  retain  in  his  hands,  at  the  time  of  distribution,  assets 
enough  of  the  estate  to  pay  such  taxes  as  they  become  due.'' 

Property  not  listed  for  taxation  by  the  owner  in  his  lifetime, 
may  be  listed  and  assessed  against  his  estate  after  his  death  as 
"omitted  property,"  and  notice  of  such  proceeding  ser^^ed  upon 
his  executor  or  administrator  is  sufficient.' 

The  official  residence  of  an  executor  or  administrator,  so  far 
as  the  taxation  and  administration  of  the  assets  in  his  possession 
are  concerned,  is  in  the  county  where  his  letters  were  issued.' 

§  437.  Where  should  be  assessed,  when  and  how.— Per- 
sonal property,  in  general,  is  assessed  where  its  owner  resides. 
But  the  situs  of  such  property,  for  the  purpose  of  taxation,  does 

'  Williams  V.  Holden,  4  Wend.  (N.  istence  or  authority  outside  of  said 
Y.)  223;  Austen  v.  Varian,  16  App.  county,  except  as  he  drew  it  from  the 
Div  (N  Y)  337,  44  N.  Y.  S.  599;  court  of  his  appointment.  In  contem- 
State  V  Jones  39  N.  J.  L.  650.  In  this  plation  of  law,  he  is  ever  present  and 
case  the  court  savs :  officially  resident  in  the  Manon  Cir- 

"It  is  ur-ed  that  the  executors  cuit  Court  during  the  pendency  of  his 
have  settled"  the  estate,  and,  there-  trust,  and  required,  without  notice, 
fore  can  have  no  money  with  which  other  than  presentation,  to  answer  to 
to  p'ay  the  taxes.  That  the  testator  every  sort  of  claim  or  demand,  with- 
has  omitted  to  provide,  or  the  execu-  in  the  jurisdiction  of  the  court,  as- 
tors  have  neglected  to  retain,  the 
funds  for  paying  taxes  on  the  se- 
curities of  the  estate,  is  hardly  an 
adequate  answer  to  the  claim  that 
taxes  should  be  levied  and  collected. 
If  the  beneficiaries  under  this  bond 
will  not  themselves  advance  the  tax- 


serted  against  the  assets  in  his  hands 
for  administration.  He  is  an  officer 
of  the  circuit  court  of  Marion  county, 
in  possession  of  property  located  in 
and  subject  to  taxation  within  the 
taxing  district  of  said  county,  and 
while  present  in  the  county,  engaged 

will    not    tneillSClvcs    a^vai.^v.     ...v.     .."-  wn.  v.    i,  „Ar^;-r,;c 

es    the  executors  must  resort  to  their  in  exercising  his  office  and  admmis- 

lawful  means  for  obtaining  what  they  tering  his  trust,  invokmg  the  aid  of 

^^„  the  law,  and  subject  to  its  mandates, 

"'^Gallup  V.    Schmidt,   154   Ind.    196,  he  was  in  his  official  capacity  such  a 

56  N   E  443  resident  of  Marion  county  as  comes 

"Gallup  V  ^Schmidt,  154  Ind.  196,  56  within    the    purview    of    §  8560,    and 

N  F  443    In  this  case  the  court  says,  amenable  to  our  taxation  laws  so  far 

on   pa-e  201:    "As  a  trustee  of  the  as  they  affect  his  trust,  in  the  same 

propertv.  he  had  his  creation  by  the  manner   as   if  his   personal  residence 

Marion  Circuit  Court,  and  had  no  ex-  had  been  in  the  county. 


744  INDIANA    PROBATE   LAW.  §    437 

not  always  or  necessarily  follow  the  domicile  of  the  owner."  It  is 
provided  that  personal  property  of  non-residents  of  the  state 
shall  be  assessed  to  the  owner  or  to  the  person  having  the  control 
thereof  in  the  township,  town,  or  city  where  the  same  may  be. 
except  that  where  such  property  is  in  transit  to  some  place  within 
the  state,  it  shall  be  assessed  in  such  place. ^^  Therefore  if  per- 
sonal property  is  used  in  business  in  this  state  it  should  be  assessed 
here  even  though  the  owner  may  reside  elsewhere. ^^ 

Personal  property  shall  be  listed  for  taxation  between  the  first 
day  of  March  and  the  fifteenth  day  of  May  of  each  year.  But 
the  ownership,  quantity  and  quality  of  such  property  shall  be  fixed 
as  of  the  first  day  of  March  in  the  year  for  which  it  is  listed.'^ 
The  lioklcr  of  the  legal  title  shall  for  the  purposes  of  taxation 
be  taken  to  be  the  owner  of  the  property. ^^  And  the  person  pur- 
chasing or  acquiring  property,  whether  real  or  personal,  on  the 
first  day  of  March  in  any  year,  shall  be  considered  as  the  owner 
on  that  day,  and  shall  be  assessed  and  liable  for  the  taxes  of  that 
year.^*  Taxes  become  a  lien  against  and  attach  to  real  estate  on 
the  first  day  of  ]\Iarch  annually  and  shall  continue  for  ten  years. ^° 

If  a  person  die  after  the  first  of  ]\Iarch  in  any  year  without 
having  given  in  the  amount  of  his  taxables,  his  executor  or  ad- 
ministrator, heir  at  law,  or  person  having  charge  thereof,  shall 
give  in  the  same  as  though  such  property  had  been  in  his  posses- 
sion on  the  first  day  of  ]\Iarch  of  such  year.^*"' 

The  personal  property  of  a  deceased  person  shall  be  listed  by 
his  executor  or  administrator,  in  his  name  as  such  executor  or 
administrator;  that  of  a  person  for  whose  benefit  it  is  held  in 
trust  by  the  trustee;  that  of  a  minor,  insane  person  or  idiot,  by 
his  guardian,  or  if  there  be  no  guardian,  then  by  the  person  hav- 
ing charge  of  such  property:    Provided.  That  the  personal  prop- 

"Eversole    v.    Cook,    "^2    Ind.    222;  '^Burns'  R.  S.  1908,  Si  10157. 

Buck  V.  Miller,  147  Ind.  586,  45  N.  E.  ^"- Mullikin  v.   Reeves,  71   Ind.  281; 

647.  47  X.  E.  8,  62  Am.  St.  436n,  37  Corr  v.  Martin,  Zl  Ind.  App.  655,  11 

L.  R.  A.  384.  X.  E.  870. 

"  Burns'  R.  S.  1908,  §  10160,  CI.  4.  ="  Burns'  R.  S.   1908.  §  10158. 

"  Buck  V.   Miller,   147  Ind.  586,  45  "  Acts  1909,  p.  158. 

N.    E.   647,  47   N.   E.  8,   62  Am.    St.  ^'Burns'  R.  S.  1908,  §  10159. 
436n,  Zl  L.  R.  A.  384. 


§    437  LIABILITY    OF   ESTATES    FOR    TAXES.  745 

erty  of  the  decedent  shall  be  listed  in  the  township,  town  or  city 
wherein  the  decedent  resided  at  the  time  of  his  death." 

The  personal  property  of  the  estates  of  deceased  persons  in  the 
hands  of  executors,  administrators,  or  other  persons  shall  be  as- 
sessed to  the  person  in  charge  of  such  property  in  the  township, 
town  or  city  where  the  deceased  last  dwelt,  until  such  property 
has  been  distributed  to  the  heirs  or  other  persons  entitled  thereto. 
If  such  decedent  was  a  non-resident  of  the  state,  such  property 
shall  be  assessed  in  the  township,  town  or  city  where  situated.'^ 
Property  in  the  control  of  an  executor,  administrator,  guard- 
ian or  trustee,  shall  be  assessed  to  such  executor,  administrator, 
guardian  or  trustee.'"  This  statute  has  reference  to  the  assess- 
ment of  real  estate. 

Personal  property  of  non-residents  of  the  state  in  the  posses- 
sion or  control  of  any  person  or  corporation  as  trustee,  receiver, 
executor,  administrator  or  guardian  shall  be  assessed  for  state 
and  county  purposes  only  and  in  the  county  where  the  court  is  sit- 
uated by  which  such  trustee,  receiver,  executor,  administrator  or 
guardian  reports.-"  Other  personal  property  than  that  of  non- 
residents which  is  in  the  possession  of  any  person  or  corporation 
as  trustee,  receiver,  executor,  administrator  or  guardian  shall  be 
assessed  for  state  and  county  purposes  in  the  county  where  the 
court  is  situated  by  which  said  trustee,  receiver,  executor,  ad- 
ministrator or  guardian  was  appointed,  or  to  which  he  reports.^^ 
Persons  required  to  list  property  on  behalf  of  others  shall  list 
it  separately  from  their  own,  specifying  in  such  case  the  name  of 
the  person,  estate,  etc.,  to  whom  it  belongs." 

The  undivided  real  estate  of  any  deceased  person  not  in  con- 
trol of  an  executor  or  administrator  may  be  listed  to  the  heirs 
or  devisees  of  such  person  without  designating  any  of  the  heirs 
or  devisees  by  name.^^ 

"■'  R.  S.  1881,  §  6288.  647.  47  X.  E.  8,  62  Am.  St.  436n,  37 

^*  Burns'  R    S.  1908,  §  10160.  CI.  6.  L.  R.  A.  384. 

"  Burns'  R.  S.  1908.  §  10170.  ==  Bums'  R.  S.  1908,  §  10168. 

=°  Burns'  R.  S.  190a  §  10160,  CI.  9.  =^  Burns'  R.  S.   1908,  §  10187;  Jen- 

"  Burns'  R.  S.  1908,  §  10160.  CI.  10:  kins  v.  Rice,  84  Ind.  342. 
Buck  V.  Miller,  147  Ind.  586,  45  N.  E. 


746  INDIANA  PROBATE  LAW.  §  438 

§  438.  Estates  in  the  hands  of  guardians,  etc. — Tlie  per- 
sonal property  of  minors  under  guardian  shall  be  assessed  to  the 
guardian  in  the  township,  town  or  city  where  the  guardian  re- 
sides, but  shall  not  be  assessed  or  taxed  for  city  or  town  purposes 
unless  the  ward  resides  in  such  city  or  town,  and  the  personal 
property  of  every  other  person  under  guardianship  shall  be  as- 
sessed to  the  guardian  in  the  township,  town  or  city  where  the 
ward  resides.**  In  all  matters  pertaining  to  the  assessment  and 
payment  of  taxes  wards  are  represented  by  their  guardians,  and 
the  ward  is  neither  a  necessary  nor  a  proper  party  to  an  action 
brought  by  the  county  treasurer  against  the  guardian  to  recover 
unpaid  taxes. '^  Tlie  guardian,  however,  is  not  liable  personally 
for  the  payment  of  taxes  assessed  against  the  property  of  liis 
ward.-"  It  is  the  duty  of  a  guardian  to  pay  the  taxes  on  the  prop- 
erty of  his  ward  out  of  money  of  the  ward  in  his  hands,  and  if 
he  has  no  money  he  can  sell  real  estate  or  personal  property  of 
the  ward  for  that  purpose.'"  If  the  guardian  should  refuse  or 
neglect  to  pay  such  taxes,  or  to  take  the  necessary  steps  to  secure 
money  for  their  payment,  he  can  be  compelled  to  do  so."'* 

Ever}'  executor,  administrator  or  guardian  having  the  prop- 
erty of  another  in  charge,  who  shall  be  put  to  any  personal  ex- 
pense in  paying  the  taxes  of  the  estate  in  his  hands,  by  advancing 
the  money  therefor,  shall  be  allowed  the  amount  of  the  same  with 
legal  interest,  up  to  the  time  that  he  is  reimbursed  from  the  funds 
of  such  estate,  and  such  advancement  shall  be  deemed  in  all  courts 
a  just  charge  against  the  estate  of  the  person  or  persons  for 
whose  benefit  the  same  was  advanced.'* 

But  where  a  guardian,  who  has  funds  belonging  to  his  ward 
in  his  hands,  fails  to  list  the  same  for  taxation  as  required  by 
law,  with  intent  to  defraud  the  revenue,  and  afterwards  such 
property  is  unlawfully  assessed,  and  the  taxes  charged  against 

"  Burns'  R.  S.  1908,  §  10160,  CI.  5.  "  Ristine  v.   Johnson,    143   Ind.   44, 

"-•Vogel    V.    Vcgler.    78    Ind.    353;  41  X.  E.  538,  42  N.  E.  310. 

State  V.  Howard,  80  Ind.  466.  "-'  Burns'  R.  S.  1908,  §  10340. 

=»Tousey  v.  Bell,  23  Ind.  423;  Thie-  =' Burns'  R.  S.  1908,  §  10341. 

baud  V.  fait,  138  Ind.  238.  36  N.  E. 

525. 


§    439  LIABILITY    OF   ESTATES    FOR    TAXES.  747 

it  paid  by  such  guardian,  he  is  not  entitled,  on  account  of  such 
illegahty  in  the  assessment,  to  be  reimbursed  for  such  taxes  or 
have  them  refunded  to  him.^" 

§  439.  Location  of  the  property.— The  locus  of  the  prop- 
erty of  an  estate  remains  the  same  as  it  was  at  and  before  the 
death  of  the  testator  or  intestate,  and  cannot  be  made  dependent 
upon  the  place  of  residence  of  the  administrator,  executor  or 
trustee,  so  that  for  the  purposes  of  taxation,  the  choses  in  action 
and  other  personal  property  of  a  decedent  in  the  hands  of  an 
executor,  administrator  or  trustee  should  be  assessed  as  of  the 
residence  of  the  decedent  at  the  time  of  his  death,  and  not  as  of 
the  residence  of  his  i>ersonal  representatives.^^ 

Real  property  shall  be  assessed  in  the  place  where  situated,  and 
to  the  owner,  if  known;  if  not,  then  to  the  occupant,  if  any;  and 
if  there  be  no  occupant,  then  as  unknown.  Property  in  the  control 
of  an  executor,  administrator,  guardian  or  trustee  shall  be  as- 
sessed to  such  executor,  administrator,  guardian  or  trustee.^- 

W'hile  it  is  the  general  rule  of  law  that  the  domicile  of  the 
owner  is  the  place  where,  by  a  legal  fiction,  his  personal  property 
is  regarded  as  having  its  situs,  and  where  it  is  to  be  taxed,^^  yet 
this  rule  is  now  departed  from  in  most  states,  as  to  chattels  hav- 
ing a  permanent  situs  in  a  state  other  than  that  of  the  residence 
of  the  owner. ^*  And  the  same  departure  has  been  taken  in  re- 
gard to  notes  and  evidences  of  debt  in  the  hands  of  an  agent  of 
the  owner  who  resides  in  another  state  or  countiy,  which  notes 
are  taken  for  money  loaned,  and  held  for  renewal  or  collection, 
with  the  view  of  reloaning  the  money  by  the  agent  in  the  same 
state,  the  business  being  permanent  in  the  hands  of  the  agent. ^^ 

^  Howard  County  v.  Armstrong,  91  "  Herron  v.  Keeran,  59  Ind.  472,  26 

Ind.  528.  Am.  Rep.  87. 

^'McDougal  V.  Brazil,  83  Ind.  211.  '*  Rieman  v.   Shepard.  27  Ind.  288; 

In  this  case  it  was  held  that  an  an-  Burroughs  Taxation,  41. 

swer  by  an  executor  or  administrator  '^  Buck  v.   iMiller,   147  Ind.   586,  45 

to  a  petition  to  compel  the  payment  N.   E.  647,  47  N.   E.  8,  62   Am.   St. 

of    certain    taxes    assessed,    that    all  436n,  37  L.  R.  A.  384;  Foresman  v. 

such    taxes    due   had   been   paid    was  Byrns,    68    Ind.    247;    People   v.    Og- 

good  and  need  not  be  verified.  densburgh.  48  N.  Y.  390 ;  Burroughs 

"  Burns'  R.  S.  1908,  §  10170.  Taxation,  §  44. 


748  INDIANA    PROBATE   LAW.  §    44O 

So  it  will  be  seen  that,  for  the  puqx)ses  of  taxation,  the  situs  of 
personal  property  does  not  always  or  necessarily  follow  the  domi- 
cile of  the  owner,  but  if  it  is  used  in  business  in  this  state  it  will 
be  assessed  here  even  though  the  owner  may  reside  elsewhere, 
and  this  is  true  of  moneys  and  credits  as  well  as  of  other  fonns 
of  personal  property,^"  because  for  the  purposes  of  taxation  the 
tenn  personal  property  includes  bonds,  notes,  choses  in  action  and 
other  evidences  of  credits. ^^ 

It  does  not  militate  against  the  power  of  the  state  to  tax  per- 
sonal property  wliich  has  a  definite  and  pemianent  situs  therein 
tliat  another  state,  by  reason  of  its  jurisdiction  over  the  owner 
or  otherwise,  is  also  exercising  a  like  power.^® 

,^  440.  Statement,  interrogatories,  etc. — Un  the  first  day 
of  March  of  each  year,  or  as  soon  thereafter  as  practicable,  and 
before  the  fifteenth  day  of  May.  the  assessor  shall  call  upon 
each  person  required  to  be  assessed  and  furnish  him  or  her  with 
the  proper  blanks  for  the  purpose,  and  thereupon  such  person 
shall  make  to  such  assessor  a  full  and  correct  description  of  all 
tlie  personal  property  *  *  *  held,  possessed  or  controlled 
by  him  as  executor,  administrator,  guardian.  *  *  *  or  in 
any  representative  or  fiduciar}^  capacity,  and  he  shall  fix  what  he 
deems  the  true  cash  value  thereof  to  each  item  of  property  for 
the  guidance  of  such  assessor,  who  shall  determine  and  settle  the 
value  of  each  item,  after  examination  of  such  statement,  and  also 
an  examination  under  oath  of  the  party  or  of  any  other  person, 
if  he  deems  it  necessar}-.^'' 

To  enable  the  assessor  to  reach  property  in  hands  of  fiduci- 
aries, every  person  is  required  by  law  to  answer  under  oath  as 

"Eversole    v.    Cook.,  92    Ind.    222;  Exp.  Co.  v.  Ohio  State  Auditor,  166 

Buck  V.  Miller.  147  Ind.  586,  45  N.  E.  U.  S.  185,  41  L.  ed.  965,  17  Sup.  Ct. 

647.  47  N.  E.  8,  62  Am.  St.  436n,  11  604. 

L.  R.  A.  384;   Pullman's  Palace  Car  «  Buck  v.  Beach,  164  Ind.  Zl ,  71  N. 

Co.  V.  Pennsylvania,  141  U.  S.  18,  35  E.  963.  108  Am.  St.  272 ;  Coe  v.  Errol, 

L.  ed.  613.  11  Sup.  Ct.  876.  116  U.   S.  517,  29  L.  ed.  715,  6  Sup. 

^'Desty  Taxation,  388;  Cooley  Tax-  Ct.  475;  Judson  Taxation.  §  426. 

ation,  270 ;  Boyd  v.  Selma,  96  Ala.  144,  ^  Burns'  R.  S.  1908.  §  10197. 
11  So.  393,  16  L.  R.  A.  729n;  Adams 


§    441  LIABILITY    OF   ESTATES    FOR    TAXES.  749 

to  whether,  on  the  first  day  of  March  of  the  current  year,  he  was 
the  executor  of  the  last  will  or  the  administrator  of  the  estate 
of  any  deceased  person,  or  guardian  of  the  estate  of  any  infant 
or  person  of  unsound  mind,  or  the  trustee  of  the  property  of  any 
person,  and  if  so  he  is  required  to  designate  for  whom  he  so  acts 
and  to  name  the  court  in  which  the  estate  is  pending  and  to  which 
he  reports.**^ 

In  arriving  at  the  true  valuation  of  property  for  the  purposes 
of  assessment  and  taxation  the  cash  value  of  the  property  is  its 
market  or  selling  price  at  the  place  where  the  property  is  when 
assessed.  If  the  property  is  of  a  kind  that  has  no  market  value  or 
selling  price,  then  its  actual  value  must  be  taken. *^ 

The  owner  is  required  to  fix  the  values  and  if  he  does  not  they 
must  be  fixed  by  the  assessing  officer.  Unless  such  officer  fixes  a 
different  value  he  will  be  presumed  to  have  adopted  the  value 
fixed  by  the  owner. ■*=  The  assessment  list,  when  completed,  must 
be  sworn  to  by  the  owner  of  the  property."*^ 

§  441.  Payment  of  taxes.— In  the  order  of  the  payment  of 
the  debts  of  a  decedent,  taxes  accrued  against  his  estate  are  made 
claims  of  the  fourth  class.  The  statute  provides,  "taxes  accrued 
upon  the  real  and  personal  estate  of  the  decedent  at  his  death, 
and  taxes  assessed  upon  the  personal  estate  during  the  course  of 
the  administration"  shall  be  paid  after  the  payment  of  the  ex- 
penses of  the  administration,  funeral  of  the  deceased,  and  of  his 
last  sickness.** 

Under  this  statute  all  taxes,  which  have  accrued  against  a  per- 
son prior  to  his  death,  on  both  real  and  personal  property,  be- 
came a  personal  charge  against  him  as  well  as  a  lien  upon  the 
property,  and  should  be  paid  by  the  executor  or  administrator  of 
the  estate  after  his  death  for  the  reason  that  they  are  proper  debts 
against  the  estate.   The  executor  or  administrator  of  a  decedent's 

*•  Burns'  R.  S.  1908,  §  10198.  «  State  v.  Reynolds,  108  Ind.  353,  9 

*"  Willis  V.   Crowder,   134  Ind.   515,  N.  E.  287. 

34  y.  E.  315.  "  Burns'  R.   S.   1908,  §  2901.     Also 

^'DuBois    ..    Lake   Count>-,   4   Ind.  ante,  §"291. 
App.  138,  30  X.  E.  206. 


750  INDIANA    PROBATE    LAW.  §    441 

estate  is  also  liable  for  the  taxes  which  are  assessed  against  the 
personal  property  of  such  decedent  during  the  course  of  the  ad- 
ministration of  the  estate;  but  as  the  land  descends  directly  to  the 
heir,  the  executor  or  the  administrator  will  not  be  liable  for  taxes 
which  accrue  upon  such  real  estate  after  the  descent  is  cast.  It  is 
not  his  duty  to  pay  such  taxes,  but  the  duty  of  the  heir." 

The  personal  property  of  a  decedent,  in  the  hands  of  his  execu- 
tor or  administrator,  is  liable  for  all  accrued  and  delincjuent  taxes 
against  such  decedent's  estate,  both  real  and  personal;  and  such 
personal  proi)erty  may  be  lawfully  seized  by  the  county  treasurer 
to  satisfy  the  delinquent  taxes.  Such  treasurer  is  not  compelled 
to  file  a  claim  against  the  estate  for  such  taxes."*" 

But  in  the  absence  of  some  statutory  provision  authorizing 
such  a  proceeding,  the  private  property  of  an  executor  or  admin- 
istrator, or  guardian,  cannot  l^e  taken  or  held  liable  for  taxes 
accruing  against  him  in  his  fiduciary  capacity.*^ 

However,  if  any  such  person  should  pay  such  taxes  out  of  his 
own  private  means,  the  statute  provides  for  his  reimbursement 
from  the  estate  in  his  hands.  It  reads :  "Every  executor,  ad- 
ministrator, guardian,  trustee,  receiver,  or  person  having  the 
property  of  another  in  charge,  who  shall  be  put  to  any  personal 
expense  in  paying  the  taxes  of  the  estate  of  such  decedent,  ward 

"Henderson  v.  Whitinger,  56  Ind.  but  the  purchaser  takes  them  subject 

131.     In  this  cause,   the  court   says :  to  liens,  unless  they  are  sold  to  pay 

"Where  taxes  have  accrued  upon  the  the  liens,  which   does  not  appear  in 

land   of   a   person   before   his   death,  this  case."    Martin  v.  Beasley,  49  Ind. 

they  become  a  personal  charge  against  280. 

him,  as  well  as  a  lien  upon  the  prop-  *^  Ring  v.  Ewing,  47  Ind.  246.  In 
erty,  and  it  seems  to  us  that  such  this  case  it  was  held  that  the  county 
taxes  should  be  paid  by  the  executor  treasurer  might  lawfully  levy  on  the 
or  administrator,  because  they  are  personal  estate  of  the  decedent  in  the 
debts  against  the  estate.  But  we  are  hands  of  the  executor,  to  satisfy 
not  aware  of  any  statute  which  makes  taxes  against  the  real  estate  that  had 
it  the  duty  of  an  executor  or  admin-  become  delinquent,  and  that  he  was 
istrator  to  pay  taxes  on  land  accruing  not  bound  to  proceed  against  the  ben- 
after  the  death  of  the  testator  or  in-  eficiaries,  or  to  file  a  claim  against 
testate.  The  lands  descend  directly  the  estate  for  such  unpaid  taxes, 
to  the  heir,  who  should  pay  the  taxes  Catterlin  v.  Douglass,  17  Ind.  213. 
accruing  after  the  descent  is  cast.  "  Tousey  v.  Bell,  23  Ind.  423. 
The  administrator  may  sell  the  lands, 


g    442  LIABILITY    OF   ESTATES    FOR    TAXES.  75 1 

or  Other  person,  by  advancing  the  money  therefor,  shall  be  al- 
lowed the  amount  of  the  same,  with  legal  interest  up  to  the  time 
he  is  reimbursed  from  the  funds  of  such  estate;  and  such  ad- 
vancement shall  be  deemed,  in  all  courts,  a  just  charge  against  the 
estate  of  the  person  or  persons  for  whose  benefit  the  same  was 
advanced."*^ 

§  442.  When  taxes  should  be  paid. — Any  person  charged 
with  taxes  on  the  tax  duplicate  in  the  hands  of  a  county  treasurer 
may  pay  the  full  amount  of  such  taxes  on  or  before  the  first 
Monday  in  May,  or  may,  at  his  option,  pay  the  first  instalment 
at  such  time,  and  the  remaining  instalment  on  or  before  the  first 
Monday  of  the  following  November.*^ 

The  statutes  further  provide  in  relation  to  the  collection  of 
taxes  accruing  and  unpaid  that,  "it  shall  be  the  duty  of  every  ex- 
ecutor, administrator,  guardian,  receiver,  trustee,  or  persons  hav- 
ing the  property  of  any  decedent,  infant,  idiot,  or  insane  person  in 
charge  to  pay  the  taxes  due  upon  the  property  of  such  decedent, 
ward  or  party."^"  In  case  of  neglect  to  pay  any  instalment  of 
taxes  when  due,  when  there  is  enough  money  on  hand  to  pay  the 
same,  the  county  treasurer  shall  present  to  the  circuit  or  other 
proper  court  of  the  county  at  its  next  term  thereafter,  a  brief 
statement  in  writing  signed  by  him  as  such  county  treasurer,  set- 
ting the  facts  and  amount  of  such  delinquency;  and  such  court 
shall  at  once  issue  an  order  directed  to  such  delinquent,  com- 
manding him  to  show  cause,  within  five  days  thereafter,  why  such 
taxes,  penalty  and  costs  should  not  be  paid ;  and  upon  failure  to 
show  good  and  sufficient  cause  for  such  non-payment,  the  court 
shall  order  him  to  pay  such  taxes  out  of  the  assets  in  his  hands 

*'  Burns'  R.  S.  1908,  §  1034L  thereon  to  be  paid  over  to  A  to  be 

*"  Burns'  R.  S.  1908,  §  10321.  used  and  enjoyed  by  her  as  her  ab- 

=*  Wilson  V.  White,  133  Ind.  614,  33  solute  property,  and  at  her  death  the 

X.    E.    361,    19    L.    R.    A.    581.    In  $3,000  with  any  interest  not  paid  over, 

this    case    it    was    held    that    where  to  remain  in  the  testator's  estate  for 

by    the    terms    of    a    will,    the    title,  distribution,  the  will  failing  to  make 

a     certain     $3,000,     was     vested     in  any    provision    for    the    payment    of 

the    executor   in    trust   for   A   during  taxes    on   the   $3,000  trust    fund,   the 

her    natural    life,    the    same    to    be  taxes  accruing  thereon  are  to  be  paid 

loaned,     and     the     interest     accruing  out  of  the  general  funds  of  the  estate. 


752  INDIANA    PROBATE    LAW.  §    443 

belonging  to  the  estate  of  said  decedent,  ward  or  other  person. 
Such  dehnquent  shall  not  be  entitled  to  any  credit  in  any  settle- 
ment of  said  trust,  for  the  penalty,  interest  and  costs  occasioned 
by  such  delinquency,  or  by  the  order  to  show  cause,  but  the  same 
shall  be  a  personal  charge  against  him,  and  he  shall  be  liable  on 
his  official  bond  for  such  penalty,  interest  and  costs. "^* 

This  statute  requires  the  county  treasurer  to  set  forth  the 
facts  relative  to  such  delinquency  in  his  written  statement,  and 
while  the  proceeding  is  not,  strictly  speaking,  a  civil  action,  yet 
the  statute  does  not,  even  by  implication,  deprive  the  adverse 
party  of  the  right  to  test  the  sufficiency  of  such  statement  of  facts 
by  a  demurrer  thereto. °" 

In  such  a  proceeding  brought  against  a  guardian  his  ward  is 
not  a  proper  party,  and  a  complaint  against  such  ward  is  bad  on 
demurrer.'"^ 

§  443.  Sale  of  property  for  taxes. — Nothing  herein  con- 
tained shall  prevent  the  county  treasurer  from  levying  upon  and 
selling  the  property  of  the  estate  of  any  decedent,  ward  or  per- 
son whose  property  is  held  in  trust  by  another,  for  the  payment 
of  any  delinquent  taxes,  in  the  same  manner  as  other  property 
is  sold  to  pay  delinquent  taxes.  The  remedy  given  to  county 
treasurers  by  the  provisions  of  this  act  shall  be  regarded  as  only 
cumulative;  but  every  person  holding  property,  either  as  executor, 
administrator,  guardian,  or  in  any  other  representative  or  fidu- 
ciary capacity,  who  shall  neglect  or  refuse  to  pay  the  taxes  listed 
and  due  thereon,  shall  be  liable  in  an  action  to  the  heirs  of  such 
decedent,  or  to  such  ward,  or  cestui  que  trust,  for  any  damages 
sustained  by  such  neglect  or  refusal.^* 

Where  land  has  been  sold  at  tax  sale  for  delinquent  taxes 

'^  Burns'  R.   S.   1908,   §   10340.     An  groundless.     Saint  v.  Welsh,  141  Ind. 

administrator   in   an    action   to    resist  382,  40  N.  E.  903. 

the  collection  of  taxes  upon  property  "  Lang  v.  Clapp,  103  Ind.   17,  2  X. 

omitted    from    the    tax    duplicate    by  E.  197. 

his  decedent,  stands  in  the  stead  of  "State    v.    Howard,    80    Ind.    466; 

such    decedent,    and    the    burden   of  Vogel  v.  Vogler,  78  Ind.  353 ;  Ray  v. 

proof  is  upon  him  to  show  that  the  McGinnis,  81  Ind.  451. 

claim    asserted    by    the    assessor    is  ''^  Burns'  R.  S.  1908,  §  10342. 


§    444  LIABILITY    OF   ESTATES    FOR    TAXES.  753 

thereon,  and  a  tax  deed  executed  therefor,  and  such  deed  proves 
ineffectual  to  pass  the  title  to  such  land,  the  personal  representa- 
tives of  the  deceased  grantee  would  have  no  right  to  such  deed, 
but  it  would  belong  to  the  heirs  of  such  grantee  as  if  it  were  valid 
and  effectual;  and  an  action  brought  against  the  owner  of  the 
land  to  recover  the  amount  to  which  the  grantee  in  such  invalid 
deed  is  entitled,  and  to  obtain  a  sale  of  the  land  for  the  payment 
of  delinquent  taxes  so  paid,  must  be  brought  after  the  death  of 
the  grantee  by  his  heirs  or  assigns,  and  not  by  his  executor  or 
administrator.^^ 

Crops  raised  on  the  lands  of  a  decedent,  after  his  death,  by 
his  heirs,  cannot  be  sold  for  the  taxes  due  from  the  decedent.^® 

§  444.  Redemption  from  sale. — The  owner  or  occupant  of 
any  land  sold  for  taxes,  or  any  other  person  having  an  interest 
therein,  may  redeem  the  same  at  any  time  during  the  two  years 
next  ensuing  from  the  date  of  the  sale.^' 

Infants,  idiots  and  insane  persons  may  redeem  any  lands  be- 
longing to  them,  sold  for  taxes,  within  two  years  after  the  expi- 
ration of  such  disability,  in  the  same  manner  as  provided  for  re- 
demption by  other  persons.^* 

This  section  does  not,  however,  prevent  the  execution  of  a  deed 
to  the  purchaser  before  the  removal  of  such  disability.^^  It  is  in- 
tended that  the  persons  named  in  the  statute  shall  have  the  privi- 
lege, within  the  time  mentioned,  to  redeem  from  such  sale  on  the 

^  Stephenson  v.  Martin,  84  Ind.  160.  ""  Lancaster  v.  Du  Hadway,  97  Ind. 

""Gregory  v.  Wilson,  52  Ind.  233.  565.  In  this  case  the  court  says: 
"This  crop  of  corn  was  wholly  grown  'The  right  to  redeem  may  be  exer- 
and  produced  after  the  death  of  the  cised  by  such  persons  after  the  execu- 
deceased,  and  while  the  widow  and  tion  of  a  deed,  and  as  the  statute  re- 
son  of  the  deceased  were,  by  their  quires  the  auditor  to  make  a  deed 
tenants,  in  possession  of  the  land  on  for  all  lands  after  the  expiration  of 
which  it  was  raised,  and  nominally,  two  years  from  the  sale,  the  mere 
at  least,  the  owners  thereof;  and  we  fact  that  some  persons  may  thereafter 
do  not  think  it  ever  was  the  property  redeem  does  not  deprive  the  auditor 
of  the  deceased  or  liable  for  the  pay-  of  the  power  to  make  a  deed.  The 
ment  of  the  taxes  for  the  years  prior  statute  applies  alike  to  all  sales,  and 
to  1873,  charged  against  him."  makes  no  other  provision  for  the  con- 

"  Burns'  R.  S.   1908,  §  10366.  veyance   of   lands  owned  by  persons 

"Burns'  R.  S.  1908,  §  10367.  under  disabilities." 

48— Pro.  Law. 


754  INDIANA  PROBATE  LAW.  §  445 

same  tenns  and  conditions  as  other  persons  were  allowed  to  re- 
deem before  the  expiration  of  the  two  years.*^" 

§  445.  Proceedings  when  purchaser  dies. — In  all  cases  of 
sale  of  lands  for  taxes,  if  the  purchaser  or  his  assigns  shall  die 
before  a  deed  shall  be  executed  on  such  sale,  the  deed  may  be  exe- 
cuted by  the  auditor  to  and  in  the  name  of  the  deceased  person, 
if  such  deceased  person  being  still  alive,  would  be  entitled  to  a 
deed,  or  to  his  heirs  at  law  or  devisees ;  which  deed  shall  vest  the 
title  in  the  heirs  or  devisees  of  such  deceased  person  in  the  same 
manner  and  liable  to  like  claims  of  creditors  and  other  persons  as 
if  the  same  had  been  executed  to  such  deceased  person  immedi- 
ately previous  to  his  death  (or  the  executor  or  administrator  may 
assign  the  certificate  of  purchase,  and  the  deed  may  issue  to  the 
assignee  thereof),  and  in  like  cases  which  have  heretofore  oc- 
curred, the  same  rule  shall  apply,  and  all  deeds  heretofore  issued 
in  the  name  of  any  deceased  person  who.  if  living  at  the  time  of 
the  execution  thereof,  would  have  been  entitled  thereto,  shall  have 
like  effect  as  above  provided.®^ 

~  Schissel  V.  Dickson,  129  Ind.  139,        "  Burns'  R.  S.  1908,  §  10391. 
28  N.  E.  540;  Ethel  v.  Batchelder,  90 
Ind.  520. 


CHAPTER  XXII. 


SURVIVING   PARTNERS. 


446.  The    partnership    dissolved  by 

death. 

447.  Rights   of  the   surviving  part- 

ner. 

448.  The  liabilities  and  powers  of  a 

surviving  partner. 

449.  Right  to  make  assignment  for 

the  benefit  of  creditors. 

450.  As     against     personal     repre- 

sentative   of    deceased    part- 
ner. 

451.  Rights  of  the  personal  repre- 

sentative. 

452.  The   survivor's  power  of   dis- 

position. 

453.  Survivor's    right    to    purchase. 

454.  Effect     on     partnership     real 

estate. 


§  455.  Right  of  partnership  creditors. 

456.  Actions  by  and  against  surviv- 

ing partner. 

457.  As    to    heirs    of    a    deceased 

partner. 

458.  Statutory   administration. 

459.  Required  to  file  inventory  and 

appraisement. 

460.  Must  file  list  of  liabilities,  affi- 

davits, etc. 

461.  Bond  and  sureties. 

462.  Settlement   and  distribution. 

463.  Compensation    to    the    surviv- 

ing partner. 

464.  When    receiver    may    be    ap- 

pointed. 


§  446.  The  partnership  dissolved  by  death. — The  death  of 
one  member  of  a  partnership  operates  as  a  dissolution  of  the 
firm.^  This  is  the  true  rule,  though  it  may  be  changed  by  the  ar- 
ticles of  co-partnership,  or  by  some  other  agreement  among  the 
partners.-  And  yet  the  true  legal  effect  of  such  agreements  stipu- 
lating against  a  dissolution  by  the  death  of  a  partner,  is  rather 
to  create  a  new  partnership  on  the  instant  the  old  one  ceases.   For 


*  Johnson  v.  Wilcox,  25  Ind.  182; 
Skillen  v.  Jones.  44  Ind.  136;  Lind- 
ley  Partnerships,  1033;  Parsons  Part- 
nerships, 440;  Story,  Partnerships,  § 
346;  Knapp  v.  McBride,  7  Ala.  19; 
Hoard  v.  Clum,  31  Minn.  186,  17  N. 


W.  275 ;  Jenness  v.  Carleton,  40  Mich. 
343. 

-  Laughlin  v.  Lorenz,  48  Pa.  St. 
275,  86  Am.  Dec.  592n;  Edwards  v. 
Thomas,  66  Mo.  468;  Espy  v.  Comer, 
76  Ala.  501. 


/5D 


756  INDIANA  PROBATE  LAW.  §  446 

by  no  legal  fiction  or  possibility  can  the  dead  partner  be  contin- 
ued as  a  member  of  the  firm.^ 

Where  there  is  no  agreement  among  the  partners  as  to  the 
continuation  of  the  firm  upon  the  death  of  a  partner,  neither  the 
executor  of  a  deceased  partner  nor  his  administrator,  have  any 
right  to  become  partners  with  the  survivors,  nor  in  any  manner 
to  interfere  with  the  partnership  business,  except  in  the  matter  of 
a  final  accounting.*  A  deceased  partner  may,  by  his  will,  direct 
the  continuance  of  the  partnership  after  his  death,  but  in  legal 
effect  it  amounts  rather  to  the  creation  of  a  new  partnership,  with 
his  estate  as  a  member;  and  he  may  by  the  will,  limit  the  liability 
of  his  estate  for  debts  accruing  after  his  death,  to  the  amount  of 
his  actual  interest  in  the  fimi  at  the  time  of  his  death. '^  The  con- 
tinuation of  the  partnership  after  a  partner's  death,  in  pursuance 
of  directions  in  his  will,  creates  a  new  partnership  of  which  the 
survivors  and  the  executor  of  the  deceased  partner  are  the  mem- 
bers; and  the  creditors  of  the  new  firm  have  no  claim  upon  the 
general  assets  of  the  estate  of  the  deceased  partner,  but  are  lim- 
ited to  such  assets  as  the  will  directs  to  be  employed  in  the  new 
firm." 

It  is  usually  left  to  the  option  of  the  executor,  in  such  a  case, 
to  accept  the  duty  thus  imposed  by  the  will,  for  the  reason  that 

Mvennedy   v.    Porter,     109    N.     Y.  29  X.   W.  867;   Valentine  v.  Wysor, 

526,  17  N.  E.  426.  123  Ind.  47,  23  N.  E.  1076,  7  L.  R.  A. 

*  Collier  on  Part.,  §  623;  Miller  v.  788n. 
Jones,  39  111.  54;  Robertson  v.  Bur-  'Story  on  Part.,  §  319;  Burwell  v. 
rell,  110  Cal.  568,  42  Pac.  1086;  Garwood,  2  How.  (U.  S.)  560.  11  L. 
Gwynne  v.  Estes,  14  Lea  (Tenn.)  662.  cd.  378.  Where  the  provision  in  the 
The  administrator  has  nothing  to  do  partnership  article  is  simply  that  the 
with  the  deceased's  interest  in  the  deceased  partner's  capital  shall  re- 
firm  except  to  see  that  no  waste  or  main  in  the  business,  the  executor  is 
fraud  is  committed  in  its  manage-  not  admitted  into  the  management  of 
ment.  Not  until  the  survivor  has  the  business.  Wild  v.  Davenport,  48 
paid  off  the  firm's  debts,  settled  up  X.  J.  L.  129,  7  Atl.  295,  57  Am.  Rep. 
the  partnership,  and  turned  over  the  552n ;  hence  the  executor  of  the  de- 
proportionate  share  to  the  administra-  ceased  partner  cannot,  in  such  case, 
tor  of  the  deceased  partner,  does  the  be  sued  as  a  member  of  a  new  firm, 
liability  of  the  latter  for  such  share  Stewart  v.  Robinson,  115  X^.  Y.  328, 
and  its  management  commence.  22  N.  E.  160,  163,  5  L.  R.  A.  410n. 
Loomis  V.  Armstrong,  63  ]Mich.  355,  '  Pitkin  v.  Pitkin,  7  Conn.  307,   18 


§    44^  SUR\^VIXG    PARTNERS.  757 

while  the  business  is  to  be  carried  on  by  him  for  the  benefit  of 
the  heirs  or  legatees  of  the  deceased  partner,  yet  in  this  new  firm 
the  executor  pledges  his  own  responsibility/ 

But  the  executor  does  not  become  personally  liable  for  debts 
contracted  by  the  firm  during  the  lifetime  of  the  deceased.®  If 
the  executor  should,  however,  decide  to  carry  out  the  will  by 
continuing  the  partnership  business,  the  law  imposes  upon  him 
the  duty  of  conducting  it  in  the  same  manner  in  which  his  testator 
conducted  it,  and  the  general  rule  that  if  an  executor  sell  on  credit 
he  must  take  security,  does  not  apply  to  sales  made  in  such  part- 
nership business.^ 

While  it  is  probable,  under  the  general  equity  powers  vested  in 
our  probate  courts,  that  they  might,  upon  a  proper  showing  seem- 
ing to  justify  it  in  the  interests  of  the  estate,  order  an  adminis- 
trator to  continue  for  a  time  in  the  business  of  a  firm  of  which 
his  decedent  was  a  member,  ^°  it  is  a  power  which  seems  to  the 
writer  should  be  exercised  very  sparingly.  It  is  a  perilous  one 
to  exercise  and  one  an  administrator  would  better  not  assume  if  it 
can  possibly  be  avoided,  and  never  except  in  some  rare  and  excep- 

Am.  Rep.   Ill;  Wilcox  v.  Derickson,  their  commission.    Ex  parte  Richard- 

168  Pa.  St.  331,  31  Atl.  1080;  Vincent  son.  Buck's  Cas.  in  Bankr.,  202,  209. 

V.  Martin,  79  Ala.  540.  Lord    Eldon    says    (referring    to    an 

'2    Collier   on    Part.,    §§    621,   622;  executor  carrying  on  the  partnership 

Edgar  v.  Cook,  4  Ala.  588;  Barry  v.  business  under  direction  of  the  will) 

Folkes,  60  Miss.  576;  Buckingham  v.  that    "the    case    of    the    executor    is 

Morrison,    136  111.  437,  27  N.   E.  65.  very    hard.      He    becomes    liable,    as 

In  Hart  v.  Anger,  38  La.  Ann.  341,  a  personally   responsible,   to   the   extent 

clause  in  the  partnership  articles  that  of  all  his  own  property;  also  in  his 

"in  the  event  of  the  death  of  either  of  person,  and  as  he  may  be  proceeded 

the   parties   to   this   act,   it   is   to   be  against  as  a  bankrupt,  though  he  is 

optional    with    the    survivor    whether  but  a  trustee.     But  he  places  himself 

said  co-partnership  shall  continue  or  in  that  situation  by  his  own  choice, 

not,"  was  held  not  to  be  enforceable,  judging    for    himself    whether    it    is 

In    England   an    executrix,    who   was  fit  and  safe  to  enter  into  that  situa- 

directed    to    carry    on    her    testator's  tion." 

partnership  and  exceeded  her  author-  '  Mattison   v.    Famham,    44    Minn, 

ity    by    employing    assets    therein    to  95,  46  N.  W.  347. 

an  extent  not  warranted  by  the  will,  "In  re  Cline's  Appeal,   106  Pa.   St. 

was  allowed,  upon  her  and  the  sur-  617. 

viving  partner's  bankruptcy,  to  prove  "  Powell   v.   North,   3   Ind.   392,  56 

for    the    excess    so    employed    under  Am.  Dec.  513n. 


758  INDIANA  PROBATE  LAW.  §  447 

tional  case.  For,  with  the  utmost  care  and  caution  on  his  part 
yet  the  interests  of  the  beneficiaries  of  the  estate  may  be  jeopard- 
ized by  the  vicissitudes  of  the  business,  and  the  administrator 
be  held  personally  liable  for  resulting  losses. 

It  will  be  seen  from  what  has  been  said  that  whether  a  partner- 
ship is  dissolved  by  the  death  of  one  of  the  partners  is  a  question 
dependent  upon  the  nature  of  the  business  in  which  the  firm  was 
engaged,  or  upon  the  contract  of  partnership,  or  upon  the  testa- 
mentary disposition  which  the  deceased  partner  makes  of  his  in- 
terest in  the  firm  with  the  assent  of  the  sui-viving  partners. ^^ 

No  notice  of  the  dissolution  of  the  fimi  by  the  death  of  one  of 
the  partners  is  necessary  to  discharge  the  estate  of  such  deceased 
member  from  liability  for  the  subsequent  debts  and  transactions 
of  the  firm.^- 

§  447.  Rights  of  the  surviving  partner. — At  common  law, 
upon  the  dissolution  of  a  partnership  by  the  death  of  one  of  its 
members,  the  survivor  alone  had  the  legal  right  to  the  possession 
and  disposition  of  the  partnership  property,  and  was  alone  liable 
to  be  sued,  or  entitled  to  sue,  in  respect  of  the  debts  owing  by 
or  to  the  finn."  And  this  in  the  main  is  yet  the  law  in  this  state. 
Upon  the  dissolution  of  a  partnership  by  the  death  of  a  partner, 
the  surviving  partner  becomes,  by  a  species  of  succession,  the 
owner,  and  entitled  to  the  possession  and  control  of  all  the  prop- 
erty of  the  partnership,  but  not  an  owner  in  the  full  and  absolute 
sense  of  the  tenn,  but  as  a  trustee  rather  for  the  benefit  of  all 
concerned,  and  for  the  purpose  of  winding  up  the  affairs  of  the 
partnership  and  distribution  of  the  proceeds.^* 

"  Needham  V.  Wright,  140  Ind.  190,  441;    Roys    v.    Vilas,    18    Wis.    169; 

39  N.  E.  510;  Schmidt  v.  Archer,  113  Hanna  v.  Wray,  11  Pa.  St.  27. 

Ind.  365,  14  N.  E.  543 ;  Lindley  Part-  "  Smith  v.  Walker,  38  Cal.  385,  99 

nerships,    1044-231;     Story    Partner-  Am.  Dec.  415;  Nelson  v.  Hayner,  66 

ships.  §  317.  111.  487;  Brown  v.  Watson,  66  Mich. 

"Story  Part.,  §  343;  Collier  Part.,  223,  ZZ  N.  W.  493;  Strange  v.  Gra- 
il 24,  613;  Price  v.  Mathews,  14  La.  ham,  56  Ala.  614;  Bush  v.  Clark,  127 
Ann.  11;  Dean  v.  Plunkett,  136  Mass.  Mass.  Ill;  Adams  v.  Hackett,  27  N. 
195.  H.  289,  59  Am.  Dec.  Zld.     In  Need- 

"Daby  v.  Ericsson.  45  N.  Y.  786;  ham  v.  Wright,  140  Ind.  190,  39  N.  E. 

Murray  v.  Mumford,  6  Cow.  (N.  Y.)  510,  the  court  says:   "Neither  was  the 


447 


SURVIVING    PARTNERS. 


759 


Such  survivor  has  the  sole  right  to  the  possession,  control  and 
management  of  all  the  firm  property  for  the  purpose  of  closing 
out  the  firm  business;  and  if  there  is  more  than  one  survivor, 
such  right  devolves  upon  all  equally. ^^ 

The  statute  in  this  state  in  no  wise  changes  the  well-settled  rule 
that  a  surviving  partner  is  entitled  to  the  exclusive  possession  and 
control  of  the  assets  of  the  firm,  including  choses  in  action,  for 
the  purpose  of  settling  and  closing  up  the  business  of  the  partner- 
ship; and  until  such  settlement  of  the  partnership  business,  the 
personal  representatives  of  a  deceased  partner  cannot  claim  or 
take  any  particular  chattel  or  portion  of  the  property  or  assets 
of  the  firm  or  otherwise  assume  any  possession  or  control  of 
such  property  or  assets.  In  closing  up  the  business  of  the  firm, 
the  surviving  partner  is,  in  legal  contemplation,  the  only  repre- 
sentative of  the  firm,  and  the  joint  estate  vests  in  him.^** 


plea  correct  in  concluding  that  on  a 
dissolution  of  a  partnership,  whether 
by  death  or  otherwise,  the  partners 
became  tenants  in  common  of  the 
partnership  property.  It  is  true  that 
in  Stair  v.  Richardson,  108  Ind.  429 
[9  N.  E.  300],  there  is  an  inadver- 
tent expression  to  the  eflfect  that 
'after  dissolution  former  members  are 
tenants  in  common.'  The  statement 
was  unnecessary  to  the  decision  of 
that  case.  Surviving  partners  are 
rather  joint  tenants  than  tenants  in 
common.  They  are  trustees  for  the 
winding  up  of  the  affairs  of  the  part- 
nership; and  all  of  the  property  of 
the  firm  goes  to  the  survivors  pend- 
ing settlement." 

"  Needham  v.  Wright,  140  Ind.  190, 
39  N.  E.  510;  Farley  v.  Moog,  79  Ala. 
148,  58  Am.  Rep.  585;  Heartt  v. 
Walsh,  75  111.  200;  Davis  v.  Sowell, 
n  Ala.  262;  Wilson  v.  Nicholson,  61 
Ind.  241 ;  Godfrey  v.  Templeton,  86 
Tenn.  161. 

'•  Needham  v.  Wright,  140  Ind.  190, 
39  N.  E.  510;  Willson  v.  Nicholson, 


61  Ind.  241 ;  Anderson  v.  Ackerman, 
88  Ind.  481 ;  Skillen  v.  Jones,  44  Ind. 
136;    Cobble    v.    Tomlinson,    SO    Ind. 
550.      A    surviving    partner    has    the 
right   to    the   control    and   possession 
of  the  propert}'  of  the  firm,  and  may 
dispose  of  it  in  order  to  adjust  the 
partnership  accounts,  and  is  only  lia- 
ble to  the  representatives  of  the  de- 
ceased  partner   for  what   remains   in 
his  hands  after  the  partnership  aflfairs 
are  settled.     Valentine  v.  Wysor,  123 
Ind.  47,  23  N.  E.   1076,  7  L.  R.  A. 
788n.     When  a  member  of  a  partner- 
ship dies,  the  surviving  partners  hold 
the  property  and  money  of  the  part- 
nership in   trust   for   the  partnership 
creditors ;    and    where    the    surviving 
partners  continue  the  business  of  the 
partnership  in  another  firm  name,  and 
insure  the  property  in  such  name,  and 
pay  the  premiums  thereon,  any  money 
realized   on    the   insurance   policy,   as 
well  as  all  other  funds  of  the  part- 
nership, belong  to  the  cestui  que  trust, 
and  primarily  to  the  creditors  of  the 
firm;   and,  in    such   case,   a   receiver 


760  INDIANA    TROBATE    LAW.  §    447 

And  where  there  is  more  than  one  they  arc,  under  the  law 
merchant,  joint  tenants,  and  one  cannot  bind  the  other  by  accept- 
ing a  bill  or  endorsing  a  note,  etc.,  without  the  proper  author- 
ity to  do  so." 

Should  all  the  members  of  a  firm  die  before  a  settlement  of  the 
partnership  affairs  is  effected,  the  duty  of  closing  up  the  business 
devolves  upon  the  personal  representative  of  the  last  sun^ivor.^* 

A  surviving  partner  is  regarded  as  a  trustee  primarily  for  the 
creditors  of  the  fimi,  and  secondarily  for  the  heirs  or  personal 
representatives  of  the  deceased  partner  in  all  that  remains,  or 
fairly  ought  to  remain  after  adjusting  the  partnership  account. 
He  cannot  speculate  upon  the  property  which  the  law  commits  to 
his  custody,  solely  for  his  own  advantage,  and  if  he  makes  profits 
out  of  the  trust  property,  in  the  course  of  the  adjustment  of  the 
affairs  of  the  partnership,  he  is  held  to  account  to  those  interested 
for  their  share. ^^ 

A  surviving  partner  is  entitled  to  the  custody  and  manage- 
ment of  the  assets  of  the  partnership,  unless  it  be  shown  that  he 
is  committing  waste  or  othenvise  mismanaging  the  aft'airs  of  the 
firm,  and  his  liability  to  the  heirs  or  representatives  of  the  de- 
ceased partner  is  confined  to  what  remains  in  his  hands  after 
ever)'thing  connected  with  the  partnership  has  been  settled."" 

having  been  appointed,  he  is  entitled  139;  Nehrboss  v.  BHss,  88  N.  Y.  600. 

to  the  possession  and  control  of  all  A  surviving  partner  is  entitled  to  the 

the    firm    assets,    including   insurance  custody  and  management  of  the  as- 

moneys    obtained    by    the    surviving  sets,   unless   it  be   shown   that  he   is 

partners    on    a    policy    procured    by  committing  waste,  or  otherwise  mis- 

them,    and   including  profits    realized  managing  the  afifairs  of  the  firm,  and 

in  the  continuance  of  the  partnership  is  only  liable  to  the  heirs  or  repre- 

business.     Bollenbacher  v.  First  Nat.  sentatives    of    the    deceased    partner 

Bank,  8  Ind.  App.  12,  35  N.  E.  403.  for  what  remains  after  everything  is 

"  Needham  v.  Wright,  140  Ind.  190,  settled  up.     Valentine  v.  Wysor,   123 

39  N.  E.  510;  Jenness  v.  Carlton,  40  Ind.   47,  23   N.   E.    1076,   7  L.   R.   A. 

Mich.  343;  Murray  v.  Ayer,  16  R.  I.  788n. 
665,  19  Atl.  241.  ^n^alentine  v.  Wysor,  123  Ind.  47, 

"  Dayton   v.    Bardett,   3S   Ohio    St.  23  N.  E.  1076,  7  L.  R.  A.  788n. 
357;    Brooks    v.    Brooks,    12    Heisk.        ="  Needham  v.  Wright.  140  Ind.  190, 

(Tenn.)  12;  Costley  v.  Wilkerson,  49  39  N.  E.  510;  Harrah  v.  Davis,  —  Ind. 

Ala.  210;  Whitney  v.  Cook,  5  Mass.  App.  — ,  96  N.  E.  41. 


§    448  SURVIVING    PARTNERS.  76 1 

In  some  of  the  cases  a  surviving  partner  is  called  a  trustee,  but 
he  is  not  an  ordinary  trustee  as  that  term  is  generally  under- 
stood. He  does  not  have  possession  and  dominion  over  the  part- 
nership assets  by  virtue  of  any  statute  or  action  of  any  court,  but 
by  reason  of  his  own  interest  in  the  property  and  his  rights  and 
powers  as  a  member  of  the  firm.  The  statutes  in  reference  to  the 
settlement  of  partnership  estates  do  not  confer  any  of  those 
rights  upon  him,  but  are  mere  limitations  of  his  powers  and  for 
the  protection  of  the  funds  arising  from  the  partnership  assets. 
A  commingling  of  those  funds  with  his  individual  funds  is  not  a 
conversion  as  would  be  the  case  if  he  were  only  a  trustee,  since  he 
has  an  ownership  in  and  control  over  them  aside  from  the  trust 
by  virtue  of  his  connection  as  partner.-'" 

Our  statutes  made  it  the  duty  of  the  surviving  members  of  a 
partnership  to  qualify  and  give  bond,  precisely  the  same  as  an 
executor  or  administrator.  And  when  this  is  done  the  surviving 
partners  become  trustees  for  the  benefit  of  the  creditors  of  the 
firm.-^  If  this  is  not  done  the  creditors  of  the  firm  may  resort  to 
their  common-law  right  and  sue  the  partners  personally  for  the 
indebtedness  owing  by  the  firm^  or  in  a  proper  case,  they  may  re- 
sort to  a  suit  in  equity  to  compel  the  application  of  the  partner- 
ship property  to  the  payment  of  the  partnership  debts.  For  it  is 
the  law  that  the  members  of  a  partnership  are  personally,  jointly 
and  severally  liable  for  all  the  indebtedness  of  the  firm." 

§  448.    The  liabilities  and  powers  of  a  surviving  partner. — 

The  surviving  member  or  members  of  a  partnership  are  author- 
ized to  collect  the  assets  of  the  firm,  to  receive  and  receipt  for 
payments,  to  pay  and  settle  partnership  debts,  to  close  out  the 
partnership  business,  and  after  the  payment  of  all  debts  to  make 
a  distribution  of  the  net  surplus  of  the  firm's  assets  to  those  in 
law  entitled  to  it.-* 

^American   Bonding   Co.   v.    State,  E.  67Z;  Swing  v.  Hill,  44  Ind.  App. 

40  Ind.  App.  559,  82  N.  E.  548.  140,  88  N.  E.  721. 

"Swing  V.  Hill,  44  Ind.  App.   140,  =' Heartt    v.    Walsh,    75    111.    200; 

88  N.  £."721.  Gleason  v.  White,  34  Cal..258;  Heath 

''Dean    v.    Phillips,    17    Ind.    406;  v.    Waters,  40   Mich.   457;   Offutt  v. 

Ralston  v.  Moore,  105  Ind.  243,  4  N.  Scott,  47  Ala.  104;  Valentine  v.  Wy- 


762  INDIANA    PROBATE    LAW.  §    448 

Such  surviving  partner  has  no  power  to  sign  tlie  firm  name  to 
an  obhgation  for  a  pre-existing  debt;-"  but  may  draw  checks 
against  the  firm's  bank  account,  using  tiie  firm  name  in  so  doing 
and  may  use  the  firm  name  in  the  transfer  of  a  note  belonging 
to  it,  his  indorsement  not  being  operative  against  the  firm,  but 
being  used  only  as  a  fonnal  transfer  of  the  title.^" 

The  acts,  admissions,  and  acknowledgments  of  a  surviving 
partner  are  binding  only  so  far  as  he  has  property  of  the  finn  in 
his  hands." 

The  survi\iiig  i)ai tner  has  the  legal  right  to  the  possession  and 
the  disix)sition  of  all  the  partnership  property  for  the  purpose  of 
the  payment  of  debts  and  of  distribution.  And  for  such  purpose 
he  may  recover  the  partnership  property  even  from  the  adminis- 
trator of  the  deceased  partner.-^  The  right  of  action  to  collect 
the  debts  and  assets  of  a  partnership  where  any  of  the  partners 
are  dead  is  vested  by  law  exclusively  in  the  surviving  partner  or 
partners.^*  And  while  the  right  of  action  for  liabilities  due  a 
partnership  survive  and  vest  exclusively  in  the  surviving  mem- 
bers of  the  firm,  the  liabilities  of  the  partnership  survive  not  only 
against  the  surviving  partners,  but  also  against  the  estate  of  the 
deceased  partner.^" 

sor,  123  Ind.  47,  23  N.  E.  1076.  7  L.  ="  Calvert    v.    Marlow,    18   Ala.   67; 

R.  A.  788n;  Hodgkins  v.  Merritt,  53  Dwinel  v.  Stone,  30  Me.  384;  Hanna 

Me.  208;  Berry  v.  Harris,  22  Md.  30,  v.  Wray,  11  Pa.  St.  21  \  Valentine  v. 

85  Am.  Dec.  639;  Betts  v.  June,  51  N.  Wysor,  123  Ind.  47,  23  N.  E.  1076,  7 

Y.  274.  L.  R.  A.  788n ;  Holland  v.  Fuller,  13 

"Lang    V.    Waring,    17    Ala.    145;  Ind.  195. 

Matteson  v.  Nathanson.  38  Mich.  Zll ;  '"■' Xeedham  v.  Wright,  140  Ind.  190, 

Citizens'  Mut.   Ins.   Co.  v.   Ligon,  59  39   N.   E.   510;    Mcintosh   v.    Zaring, 

Miss.     305;     Central     Sav.    Bank    v.  150  Ind.  301,  49  N.  E.  164;  Newman 

Mead,  52  Mo.  546.  v.  Gates,  165  Ind.  171,  72  N.  E.  638. 

-"  Johnson  v.  Berlizheimer,  84  III.  54,  '"  Ralston  v.  Moore,  105  Ind.  243,  4 

25  Am.  Rep.  427;  Bredow  v.  Mutual  N.  E.  (ilZ;  Newman  v.  Gates,  165  Ind. 

Sav.   Inst..  28  Mo.   181;   Commercial  171,  72  N.  E.  638;  Camp  v.  Grant,  21 

Nat.    Bank-  v.    Proctor,   98    111.    558;  Conn.    41.    54   Am.    Dec.    321;    Story 

Bank  v.  Vanderhorst,  32  N.  Y.  553.  Part.,  §  260. 

""Rose  v.  Gunn,  79  Ala.  411;  Ad- 
ams V.  Ward,  26  Ark.  135. 


§    449  SURVIVING   PARTNERS.  763 

§  449.  Right  to  make  assignment  for  the  benefit  of  cred- 
itors.— If  the  partnership  is  insolvent  the  survivors  may 
make  a  general  assignment  for  the  benefit  of  the  firm  creditors.'' 
While  this  may  be  said  to  be  the  general  rule,  it  is  also  held  in 
some  of  the  cases  that  such  assignment  cannot  be  made  only  with 
the  consent  of  the  personal  representative  of  the  deceased  part- 
ner.'- But  the  validity  of  an  assignment  made  without  such  con- 
sent, can  only  be  attacked  by  such  personal  representative.'' 

However,  the  assent  of  all  the  surviving  partners  is  necessary 
to  a  valid  assignment.'* 

Such  assignment  cannot  be  made  for  the  payment  of  the  sepa- 
rate debt  of  the  deceased  partner,"  nor  for  debts  of  the  firm 
contracted  subsequent  to  such  partner's  death  in  a  continuation 
of  the  firm  business  without  authority."  It  is  no  ground  of  objec- 
tion that  the  assignment  also  includes  the  individual  property  of 
the  surviving  partners.'^ 

By  statute  in  Indiana  any  surviving  partner  or  partners  doing 
business  in  this  state  shall  have  full  power  to  make  assignments 
of  the  partnership  assets  for  the  benefit  of  creditors.'^ 

"Salsbury  v.   Ellison,  7  Colo.   167,  ^^  Moody  v.   Downs,  63  N.   H.^SO; 

303,  2  Pac.  906,  3  Pac.  485,  49  Am.  Haynes  v.  Brooks,  116  N.  Y.  487,  22 

Rep  347;  Williams  v.  Whedon,  109  N.  X.  E.  1083. 

Y.  333,  16  N.  E.  365,  4  Am.  St.  460;  =^  Burns'  R.  S.  1908,  §3328.  In  State 
Gable  v  Williams,  59  Md.  46 ;  Patton  v.  Matthews,  129  Ind.  281,  28  N.  E. 
V.  Leftwich,  86  Va.  421,  10  S.  E.  686,  703,  the  court  says :  "Our  statute  re- 
19  \m  St.  902,  6  L.  R.  A.  569n ;  Emer-  lating  to  the  settlement  of  partner- 
son  V  Senter,'  118  U.  S.  3,  30  L.  ed.  ships  by  the  surviving  partner  does 
49  6  Sup.  Ct!  981 ;  Shanks  v.  Klein,  not  change  or  afiFect  his  interest  m  or 
104  U    S   18  26  L.  ed.  635.  right   of   possession   of   the   partner- 

*=  Nelson   v.   Tenney,   36   Hun    (N.  ship  assets,  but  that  he  is  the  legal 

Y)    3V-    Barcroft   v.    Snodgrass,    1  owner  of  the  assets  (Wilson  v.  Nich- 

Coldvv"   '(Tenn.)     430;    Tiemann    v.  olson,  61  Ind.  241),  and  may  make  a 

Molliter   71  Mo.  512;  Vosper  v.  Kra-  voluntary  assignment  of  the  partner- 

mer   31  X    J    Fq   420.  ship  assets,  or  prefer  one  firm  cred- 

« Williams   v.   Whedon,   109   N.   Y.  itor  over  the  others  by  the  execution 

333   16  X   E.  365,  4  Am.  St.  460.  of    chattel    mortgages."      First    Nat. 

«  Egberts  V.  Wood,  3  Paige  (N.  Y.)  Bank  v.  Parsons,  128  Ind.  147,  27  N. 

5jg  E.  486;  Hadley  v.  Milligan,  100  Ind. 

»  Hutchinson  v.  Smith,  7  Paige  (N.  49;  Willson  v.  Nicholson,  61  Ind.  24L 

yX     26  I"      ^•'■^^      ^^^-      -^^"^     ^'      ^^'■^°"^'      ^ 

-Tiemann  v.  Molliter,  71  Mo.  512.     Ind.   147,  27  N.  E.  486,  it  was  held 


764 


INDIANA    PROBATE    LAW. 


§    449 


And  in  the  absence  of  any  statute  prohibiting  it,  a  surviving 
partner  has  the  same  right  and  power  to  secure  and  prefer  cred- 
itors as  is  possessed  by  individual  debtors."'* 

With  this  purpose  in  view  he  may  make  a  vaHd  chattel  mort- 
gage upon  the  partnership  property  to  secure  any  one  or  more  of 
the  fimi  creditors  prior  to  making  a  general  voluntary  assign- 
ment.'" 

But  where  the  surviving  partners  of  a  iirni  form  a  new  firm 
and  continue  the  business  with  the  assets  of  the  old  firm,  an  as- 
signment by  them  for  the  benefit  of  the  creditors  of  the  new  firm 
will  be  invalid.''^  And  an  assignment  by  one  or  more  of  the  sur- 
viving partners  of  a  firm  of  his  individual  property  for  the  bene- 


that  a  chattel  mortgage  executed  by 
the  surviving  partner  on  the,  partner- 
ship property  w^as  good  against  a  gen- 
eral assignment,  under  the  statute,  of 
all  such  property  for  the  benefit  of 
all  the  firm  creditors,  made  by  the 
surviving  partner  afterwards.  Such 
surviving  partner  may  also  make  a 
preference  of  firm  creditors  by  trans- 
ferring the  partnership  property  to 
some  third  person  in  trust  for  certain 
of  such  creditors.  Havens  &c.  Co.  v. 
Harris,  140  Ind.  387,  39  N.  E.  49; 
Harseim  v.  Booth,  134  Ind.  281,  33  N. 
E.  1016. 

'"  Havens  &c.  Co.  v.  Harris,  140  Ind. 
387,  39  N.  E.  49;  Hadley  v.  Milligan, 
100  Ind.  49;  First  Nat.  Bank  v.  Par- 
sons, 128  Ind.  147,  27  N.  E.  486;  Em- 
erson v.  Senter,  118  U.  S.  3,  30  L.  ed. 
49,  6  Sup.  Ct.  981;  Beste  v.  Burger, 
110  N.  Y.  644,  17  N.  E.  734;  Court- 
land  &c.  Co.  v.  First  Nat.  Bank,  141 
Ind.  518,  40  N.  E.  1070.  Indi- 
vidual assignments  by  the  surviv- 
ing members  of  a  partnership  for 
the  benefit  of  the  creditors  do 
not  affect  their  right  to  sue  for 
the  recovery  of  the  firm  assets.  Need- 
ham  v.  Wright,  140  Ind.  190,  39  N.  E. 


510.  The  statute  relating  to  the  set- 
tlement of  partnerships  by  the  surviv- 
ing partner  does  not  change  or  affect 
his  interest  in  or  right  of  possession 
of  the  partnership  assets,  and  he  may 
make  a  voluntary  assignment  of  them, 
or  prefer  one  firm  creditor  over  the 
others  by  the  executing  of  a  chattel 
mortgage.  State  v.  Matthews,  129 
Ind.  281,  28  N.  E.  703. 

'"Courtland  &c.  Co.  v.  First  Nat. 
Bank,  141  Ind.  518,  40  N.  E.  1070; 
First  Nat.  Bank  v.  Parsons,  128  Ind. 
147,  27  N.  E.  486;  Hadley  v.  Milligan, 
100  Ind.  49;  State  v.  Matthews,  129 
Ind.  281,  28  N.  E.  703;  Havens  &c. 
Co.  V.  Harris,  140  Ind.  387,  39  N.  E. 
49. 

"Tiemann  v.  Mollitor,  71  Mo.  512. 
A  surviving  partner  of  an  insolvent 
firm  may  make  a  valid  chattel  mort- 
gage of  the  partnership  property  to 
secure  a  firm  debt.  The  statutes  re- 
lating to  the  filing  of  inventories  and 
appraisements  by  the  surviving  part- 
ner, do  not  forbid  the  making  of  such 
mortgage.  First  Nat.  Bank  v.  Par- 
sons, 128  Ind.  147,  27  N.  E.  486;  Ha- 
vens &c.  Co.  V.  Harris,  140  Ind.  387, 
39  N.  E.  49. 


450 


SURVIVING   PARTNERS.  7^1 


fit  of  his  creditors  does  not  have  the  effect  of  an  assignment  of 
the  firm  property,  nor  does  it  deprive  the  partnership  of  the  right 
to  the  possession  and  control  of  the  partnership  assets."'  It  is  only 
after  the  appointment  of  a  receiver  that  the  property  of  a  firm 
and  the  settlement  of  the  partnership  is  taken  out  of  the  control 
of  the  surviving  partners.  No  assignee  of  any  individual  member 
of  the  firm  has  any  right  of  possession  or  control  over  the  firm 
property  as  against  the  surviving  partners,  or  as  against  a  receiver 
dulv  appointed  for  such  partnership." 

In  the  payment  of  the  partnership  debts  the  surviving  partner 
is  free  to  choose  whom  he  will  pay.  He  can  apply  all  the  assets 
of  the  firm  to  the  payment  of  one  debt  or  he  can  assign  the  prop- 
ertv  for  the  benefit  of  all  the  creditors.** 

§  450.  Right  as  against  personal  representative  of  deceased 
partner.— The  personal  representative  of  a  deceased  partner 
has  no  right  to  the  control  or  possession  of  the  property  of  the 
fii-m,  nor  to  collect  money  due  the  partnership,  and  an  action  will 
lie  against  him  by  the  surviving  partner  or  partners  to  recover 
possession  of  property  so  appropriated,  or  to  compel  the  payment 
of  money  collected  by  him."^  Such  action,  however  is  one  against 
the  executor  or  administrator  personally  and  not  in  his  repre- 
sentative capacity;  the  estate  not  being  chargeable  with  his  tort.*« 

-Xeedhamv.  Wright,  140  Ind.  190,  with    the    statute    by    such    surviving 

39  N.  E.  510.  partner.    Hadley  v.  Milhgan,  100  Ind. 

"  Needham  V.  Wright,  140  Ind.  190,  49. 

39   N.   E.   510.     A   surviving   partner  "American    Bonding   Co^  v.    btate, 

may  make  a  trust  deed  of  the  firm  as-  40  Ind.  App.  559  82  N.  E.  548^ 

sets  for  the  benefit  of  certain  credi-  "Smith    v.    Wood,     ^1     Md     293 

tors  to  the  exclusion  of  others,  with-  Stearns  v.  Houghton  38  Vt.  583    Cal- 

out  fifing  an  inventory  or  bond,  as  re-  vert  v.  Marlow.     «  ^la   ^^^  ^^^    J; 

quired.      Havens   &c.    Co.   v.    Harris,  Taylor,  36  Hun  (N-  J.)  256     Sh^lds 

140  Ind.  387,  39  N.  E.  49.     Where  a  v.  Fuller,  4  Wis.    102,  65   Am.   Dec. 

surviving    partner    executed    a   mort-  293n. 

gage  of  the  partnership  assets  to  se-  « Davis    v^    Sowell,    77    Ala.    262 

cure  a   firm   liability,   a  complaint  to  Marlatt  v.   Scantland,    19    Ark.     443. 

foreclose  the  mortgage  is  sufficient,  as  To  a  suit  on  a  promissory  note  exe- 

against  an   assignee  appointed  subse-  cuted   by   a   partnership    m   the   firm 

quent  to  the  execution  of  the  mort-  name,   against  the  surviving  partner 

gage  without  showing  any  compliance  a    plea    in    abatement    is    msufiicient 


766 


INDIANA    PROBATE    LAW. 


45» 


Or  where  money  has  been  paid  by  a  debtor  to  the  partnership 
to  the  administrator  of  the  deceased  partner,  the  remaining  part- 
ner, if  he  so  elect,  can  compel  the  debtor  to  pay  it  again  to  him.''^ 

Where  the  deceased  partner  is  indebted  to  the  firm,  the  relation 
of  debtor  and  creditor,  as  between  the  surviving  partner  and  the 
decedent's  administrator,  does  not  arise  pending  a  settlement  of 
the  accounts,  but  when  the  balance  due  is  ascertained,  the  sur- 
viving partner  may  prove  it  as  a  claim  against  the  estate  of  the 
decedent.*^ 

It  is  the  duty  of  the  surviving  partner  to  reduce  the  assets  of 
the  firm  to  money  and  apply  the  same,  less  expenses  upon  the 
partnership  debts,  and  if  any  surplus  remains,  he  should  then  ac- 
count for  such  surplus  with  the  estate  of  the  deceased  partner. 
There  will  be  no  conversion  arise  until  he  fails  at  the  proper 
time  honestly  to  account  for  such  surplus  to  the  proper  person  or 
authority/" 


whicli  alleges  that  the  defendant  and 
one  R.,  as  partners,  executed  the  note 
in  suit ;  that  afterward  the  defend- 
ant withdrew  from  the  firm,  leaving 
in  R.'s  hands  ample  means  to  pay  all 
the  firm  debts,  including  the  note; 
that  afterward  R.  died,  and  the  ad- 
ministration of  his  estate  is  still  pend- 
ing: that  there  are  ample  means  be- 
longing to  the  estate  to  pay  the  debts, 
including  the  note,  which  has  never 
been  presented  to  the  administrator 
or  filed  against  the  estate,  and  that 
the  administrator  has  not  been  made 
a  party  to  the  suit,  wherefore  the 
court  has  no  jurisdiction.  Ralston  v. 
]\Ioore,  105  Ind.  243,  4  N.  E.  673. 

*' Calvert  v.  Marlow,  18  Ala.  67; 
Lockwood  V.  Mitchell,  7  Ohio  St.  387, 
70  Am.  Dec.  78:  Wallace  v.  Fitzsim- 
mons.  1  Dall.  (U.  S.)  248,  1  L.  ed. 
122.  A  complaint  to  set  aside  the  set- 
tlement of  a  deceased  partner's  estate, 
so  that  the  survivor  can  prosecute  a 
claim  against  the  estate  for  money 
paid   on   account   of   the   partnership 


business,  need  not  allege  the  particu- 
lar debts,  amounts,  and  persons  to 
whom  paid,  in  exhausting  the  firm 
property,  nor  allege  more  particularly 
decedent's  ownership  of  property. 
Harter  v.  Songer,  138  Ind.  161,  37  N. 
E.  595. 

"Olleman  v.  Reagan,  28  Ind.  109; 
Hunt  V.  Gookin,  6  Vt.  462;  Hufif  v. 
Lutz,  87  Ind.  471 ;  Painter  v.  Painter, 
68  Cal.  395,  9  Pac.  450;  Van  Dyke  v. 
Kilgo,  54  Ga.  551 ;  Stanberry  v.  Cat- 
tell,  55  Iowa  617,  8  N.  W.  478 ;  White 
V.  Russell,  79  111.  155.  A  surviving 
partner  who  has  not  paid  all  of  the 
partnership  debts,  but  has  paid  there- 
on all  the  partnership  assets  and 
merely  assumed  and  secured  the  bal- 
ance, has  no  right  of  action  against 
the  estate  of  the  deceased  partner. 
Whether,  having  paid  all,  he  can  look 
to  the  estate  of  the  deceased,  if  it  be 
insolvent,  quaere.  Huff  v.  Lutz,  87 
Ind.  471. 

*'  American  Bonding  Co.  v.  State, 
40  Ind.  App.  559,  82  N.  E.  548;  Har- 


451 


SURVIVING    PARTNERS.  ^^^ 


The  liability  of  partners  is  joint  and  several,  and  where  the 
surviving  partner,  in  the  absence  of  partnership  assets  is  com- 
pelled to  pay  a  firm  debt  out  of  his  own  money  he  can  compel  con- 
tribution from  the  estate  of  the  deceased  partner.'''  But  where 
the  partnership  is  solvent  the  surviving  partner  must  reimburse 
himself  out  of  its  assets,  and  until  he  has  exhausted  such  assets, 
he  cannot  enforce  any  claim  against  the  estate  of  the  deceased 
partner  to  recover  the  moiety  of  his  individual  means  he  has  ex- 
pended in  the  payment  of  the  partnership  debts."'  Nor  can  he  re- 
cover from  the  estate  of  the  deceased  partner,  in  case  of  the  in- 
solvency of  the  firm,  unless  he  has  actually  paid  out  of  his  own 
means  the  partnership  debts.  The  fact  that  he  has  merely  as- 
sumed them  and  agreed  to  pay  them,  gives  him  no  right  of  action 
against  the  deceased  partner's  estate." 

§  451.    Rights  of  the  personal  representative. — The  execu- 
tor or  administrator  of  a  deceased  partner  has  the  right  to  have 
the  ultimate  share  of  his  decedent  in  any  partnership  property 
ascertained  and  paid  over  for  the  benefit  of  his  estate.    This  con- 
veys with  it  the  right  to  have  the  estate  of  the  partnership  closed 
up  honestly  and  efficiently,  and  as  speedily  as  the  substantial  in- 
terests of  its  affairs  demand.   But  such  executor  or  administrator 
has  no  claim  upon  the  specific  property  or  assets  of  the  firm  as 
such,  but  he  has  the  right  to  have  an  honest  and  efficient  settle- 
ment of  the  partnership  business,  and  the  share  of  his  decedent 
ascertained  and  accounted   for.     And  if  the  sun-iving  partner 
fails  unreasonably  to  close  up  and  settle  such  partnership  business, 
or  if  it  shall  be  shown  that  he  is  unfaithful  to  his  trust,  he  will 
become  liable  to  such  executor  or  administrator  in  an  action  for 
an  accounting  and  final  adjustment  of  the  partnership  business; 
but  as  a  general  rule  no  such  action  will  lie  in  favor  of  an  execu- 
tor or  administrator  of  any  deceased  partner  until  after  demand 
has  been  made  upon  such  sun-iving  partner  for  a  settlement  and 

rah  V    Davis,  -  Ind.  App.  -,  96  N.        "Beckett  v.  Little,  23  Ind.  App.  65, 
E  41  54  N.  E.  1069. 

'"Harter  v.    Songer,   138   Ind.    161,        "Huff  v.  Lutz,  87  Ind.  471. 
11  N.  E.  595;   Burns'  R.   S.   1908,  § 
1272. 


768 


INDIANA    PROBATE    LAW 


§    451 


been  refused;  and  where  such  demand  is  necessar}-,  it  should  be 
averred  in  the  complaint. "'^ 

In  such  cases,  as  the  right  of  the  personal  representatives  of  a 
deceased  partner  is  only  to  his  share  of  the  partnership  estate 
after  the  partnership  debts  are  paid  and  its  affairs  finally  settled, 
and  the  shares  of  the  partners  ascertained,  the  complaint  should 
contain  allegations  of  these  facts  in  proper  traversable  averments, 
and  show  a  demand  made,  or  a  proper  excuse  for  not  making  a 
demand,  before  suit  is  brought.^* 

Such  personal  representative  of  the  deceased  partner  mav  com- 
pel the  surs'ivor  to  wind  up  the  partnership  business  and  apply 
the  firm  assets  to  tlie  payment  of  its  debts,  even  though  the  part- 
nership is  insolvent,  and  there  will  be  no  surplus  coming  to  the 
estate.  He  may  do  this  for  the  purpose  of  reducing  as  much  as 
possible  the  liability  of  the  estate  he  represents. ^^ 


"Skillen  v.  Jones,  44  Ind.  136;  An- 
derson V.  Ackerman,  88  Ind.  481 ; 
Storj-  Partnership,  §  347.  Where 
the  estate  of  the  deceased  partner  is 
lawfully  possessed  of  a  fund  which  is 
the  sole  asset  of  the  partnership,  and 
nothing  remains  to  be  done  except  to 
state  an  account  between  the  partners, 
it  need  not  pay  over  that  fund  to  the 
surviving  partner.  Kutz  v.  Dreibelbis, 
126  Pa.  St.  335,  17  Ad.  609.  Where 
partnership  propertj-  was  on  dissolu- 
tion left  with  one  of  the  members, 
who  died,  and  the  executor  converted 
it  and  placed  the  proceeds  to  the 
credit  of  the  estate,  the  other  partners 
may  recover  from  the  estate  their 
share  of  the  proceeds  only;  if  the 
act  of  conversion  were  tortious  or 
negligent,  the  executor  is  personally 
liable  for  any  sum  which  the  property 
was  worth  in  excess  of  the  price 
realized.  Bradley  v.  Brigham,  144 
:Mass.  181,  10  N.  E.  793. 

^  Krutz  V.  Craig,  53  Ind.  561 ;  Cob- 
ble V.  Tomlinson,  50  Ind.  550.  When 
a  co-partnership   is   dissolved  bj'  the 


death  of  a  member  of  the  firm,  the 
law  invests  the  surviving  partner  with 
the  exclusive  right  of  possession  and 
management  of  the  assets  of  the  part- 
nership, for  the  purpose  of  closing  up 
and  settling  the  firm's  business;  and 
the  surviving  partner  is  not  liable  to 
an  action  by  the  personal  representa- 
tive of  the  deceased  partner  in  such 
case,  as  a  general  rule,  until  a  de- 
mand is  made  for  a  settlement  and 
refused,  and  where  a  demand  is 
necessary  it  should  be  averred  in  the 
complaint.  Anderson  v.  Ackerman, 
88  Ind.  481. 

^Jennings  v.  Chandler,  10  Wis.  21. 
A  settlement  and  accounting  between 
the  executors  and  the  surviving  part- 
ner having  been  had,  a  court  of 
equity,  after  an  acquiescence  in  the 
settlement  for  fourteen  j^ears,  unex- 
plained by  circumstances,  will  not  de- 
cree the  opening  of  the  account,  al- 
though it  appears  that  the  settlement 
has  been  irregularly  made.  Valentine 
v.  Wysor,  123  Ind.' 47.  23  X.  E.  1076, 
7  L.  R.  A.  788n. 


§    45^  SURVIVING   PARTNERS.  769 

And  he  has  the  same  right  to  have  the  partnership  business 
closed  up  and  the  balance  distributed,  against  one  who  has  pur- 
chased the  interest  of  the  survivors  as  he  would  have  had  against 
such  survivors.'^' 

The  surviving  partner  can  be  compelled  to  pay  over  any  part  of 
the  individual  estate  of  the  deceased  partner  which  may  come  into 
his  hands,  even  though  the  estate  be  indebted  to  him.^' 

In  the  absence  of  express  authority  in  the  will  of  the  deceased 
partner,  or  in  the  articles  of  partnership,  a  sur\-iving  partner  has 
no  power  to  continue  the  business  of  the  firm;  and  if  he  should 
do  so  he  cannot  bind  the  estate  of  a  deceased  partner.^*  It  would 
be  an  abuse  of  the  trust,  and  at  the  sole  risk  of  such  surviving 
partner.  By  so  doing  he  would  render  himself  liable  to  the  repre- 
sentative of  the  deceased  partner  for  the  profits  made  by  so  con- 
tinuing the  firm  business,  or  for  interest  upon  the  share  of  such 
decedent ;  and  he  alone  is  liable  for  all  losses  which  might  occur.'^® 

But  where  the  interest  of  the  deceased  partner  becomes  vested 
in  one  of  the  surviving  partners,  who  gives  his  consent  to  a  con- 
tinuance of  the  co-partnership,  the  above  rule  does  not  apply.^** 

.§  452.    The  survivor's  power  of  disposition. — It  is  the  duty 

of  a  surviving  partner  to  pay  the  firm  indebtedness  and  distribute 
the  surplus  in  his  hands  if  any,  as  soon  as  is  possible.  For  this 
purpose  he  is  given  full  power  to  sell  and  dispose  of  all  part- 

"•  Williams     v.     Love,      2      Head.  Klotz  v.  ^klacreadj-,  39  La.  Ann.  638, 

rTenn.)    80,  73  Am.   Dec.   191n;   De  2    So.   203;    Goodburn  v.    Stevens,   1 

Veau    V.    Fowler,    2    Paige    (X.    Y.)  Md.  Ch.  420;  Bernie  v.  Vandever,  16 

400:    Wilson   v.    Soper,    13    B.    Mon.  Ark.  616;  BoUenbacher  v.  First  Xat 

(Ky.)  411,  56  Am.  Dec.  573.  Bank,  8  Ind.  App.  12,  35  N.  E.  403. 

''Roberts  v.  Law,  4  Sandf.  (X.  Y.)  A  surviving  partner  who  assumed  to 

642 ;  Moffatt  v.  Thomson,  5  Rich.  Eq.  continue    the    business    of   the    firm, 

(S.  Car.)  155,  57  Am.  Dec.  IZl ;  Ross  even  under  an   order  of   court,  and 

V.  Pearson,  21  Ala.  473.  who  sold  goods  to  irresponsible  per- 

**  In   re.  Wood's  Estate,   1   Pa.   St.  sons,  is  not  entitled  to  credit  for  the 

368;   Lucht  v.   Behrens,  28  Ohio   St.  amount  represented  by  the  notes  of 

231,   22   Am.    Rep.    378;    Kirkman   v.  such   persons.     Harrah   v.    Davis,   — 

Booth.  11  Beav.  273.  Ind  App.  — ,  96  X.  E.  41. 

"Oliver  v.   Forrester,   96  111.   315;        "Millerd    v.    Ramsdell,    Harr.    Ch. 

In  re.  Brown's  Appeal,  89  Pa.  St.  139;  (Mich.)  ZIZ. 
Freeman  v.  Freeman,  136  Mass.  260; 

49— Pro.  L.^w. 


770 


INDIANA    PROBATE    LAW. 


§    452 


nership  property  in  whatever  form  it  may  be,  so  as  to  get  the  as- 
sets of  the  fimi  in  a  shape  for  distribution.'"'' 

He  has  full  power  to  sell  and  convey  the  real  estate  of  the 
firm,  and  this  without  regard  to  whether  or  not  the  proceeds  will 
be  needed  to  pay  debts.*'- 

That  the  firm,  and  each  of  the  partners,  are  insolvent,  is  no 
impediment  to  a  bona  fide  transfer  of  partnership  property,  made 
for  the  purpose  of  closing  up  the  business  of  the  firm.^* 


•"  Willson  V.  Nicholson,  61  Ind.  241 ; 
Milner  v.  Cooper,  65  Iowa  190,  21  N. 
W.  558;  Allen  v.  Hill,  16  Cal.  113; 
Calvert  V.  Miller,  94  N.  Car.  600. 
The  survivor,  in  the  case  of  the  death 
of  a  partner,  must  pay  the  debts  out 
of  the  personal  property,  if  there  is 
sufficient  for  the  purpose,  and  the 
widow  and  heirs  of  the  deceased  part- 
ner, in  that  event,  have  the  right  to 
the  share  of  the  deceased  partner  in 
the  real  estate  owned  by  the  firm ;  but 
if  the  personal  property  is  not  suffi- 
cient to  pay  all  the  debts  of  the  firm, 
and  it  is  necessary  to  sell  the  real 
estate  of  the  firm  to  pay  the  debts  of 
the  firm,  the  surviving  partner  has 
the  right  to  sell  and  convey  the  same. 
If  he  sells  and  conveys  the  same  in 
good  faith,  for  a  valuable  considera- 
tion, without  an  order  of  court,  he 
passes  an  equitable  title  to  the  pur- 
chaser. Walling  V.  Burgess,  122  Ind. 
299,  22  N.  E.  419,  23  N.  E.  1076,  7  L. 
R.  A.  481n. 

^  Solomon  v.  Fitzgerald,  7  Heisk. 
(Tenn.)  552.  A  witness  who  had 
purchased  all  the  interests  of  her  de- 
ceased brother  in  a  partnership,  was 
competent  to  testify  to  a  conversa- 
tion had  between  the  deceased  and 
the  witness  and  a  third  party  relating 
to  the  partnership  business.  Case  v. 
Ellis,  9  Ind.  App.  274,  36  N.  E.  666. 
In  an  action  by  a  surviving  partner 
on  an  account  owing  the  partnership. 


the  defendant  is  a  competent  witness 
to  testify  as  to  various  payments 
made  by  him,  on  the  account,  to  the 
deceased  partner.  Wood  v.  Stewart, 
9  Ind.  App.  321,  36  N.  E.  658.  Where 
it  becomes  necessary  to  sell  a  parcel 
of  real  estate  which  is  indivisible,  in 
equity  regarded  as  personal  property 
so  far  as  necessary  to  pay  the  debts 
of  the  firm,  to  apply  a  portion  of  the 
proceeds  to  the  payment  of  the  firm 
debts,  the  sale  in  good  faith  for  a 
valuable  consideration  passes  the 
equitable  title  to  the  whole  tract,  and 
the  heirs  of  the  decedent,  or  his  legal 
representatives,  take  the  surplus  pro- 
ceeds instead  of  the  real  estate.  Wall- 
ing V.  Burgess,  122  Ind.  299,  22  N.  E. 
419.  23  N.  E.  1076,  7  L.  R.  A.  481n. 

*"  Willson  V.  Nicholson,  61  Ind.  241. 
A  conveyance  by  the  executor  in  pur- 
suance of  the  terms  of  such  will  to 
the  surviving  partner  of  the  interest 
of  the  testator  in  the  firm  property, 
in  consideration  of  the  payment  by  the 
surviving  partner  of  the  firm  debts, 
and  of  certain  individual  debts  of 
the  deceased  partner,  and  a  convey- 
ance to  the  widow  of  certain  real 
estate,  will  not  be  disturbed  by  a 
court  of  equity  until  it  is  impeached 
as  fraudulent  or  unfair;  or  unless 
collusion  between  the  executors  and 
surviving  partner  is  shown.  Valen- 
tine V.  Wysor,  123  Ind.  47,  23  N.  E. 
1076,  7  L.  R.  A.  788n.    In  such  case. 


§    452  SURVIVING   PARTNERS.  77I 

He  may  assign  or  transfer  partnership  property  in  payment  of 
partnership  debts,  or  he  may  pledge  it  as  security  for  such  debts, 
or  for  the  purpose  of  raising  money  to  pay  them.*'* 

But  he  cannot  assign  or  transfer  partnership  property  for  the 
payment  of  a  separate  debt,  or  the  debt  of  another  firm  of  which 
he  may  also  be  a  surviving  partner.*'^ 

The  surviving  partner  has  a  right  to  mortgage  the  firm  prop- 
erty in  settling  up  the  partnership  business,  and  where  such  mort- 
gage is  executed  in  good  faith  the  mortgagee's  right  is  superior  to 
the  right  of  the  representatives  of  the  deceased  partner.®*'  But 
such  right  is  confined  to  personal  property.  A  legal  mortgage 
cannot  be  made  of  partnership  real  estate  by  a  surviving  partner 
without  the  concurrence  of  all  the  partners.®^ 

The  surviving  partner,  while  he  may  be  clothed  with  the  entire 
legal  title  to  the  partnership  property,  has  no  right  or  power  to 
divert  such  property  to  his  own  private  use,  or  to  any  use  in  dero- 
gation of  the  creditors  of  the  firm.  He  is  their  trustee  to  wind 
up  the  concern  in  the  best  manner  for  all  interested,  and  without 
unnecessary  delay. ^'^ 

An  execution  against  an  individual  partner  cannot  be  levied  on 
the  property  in  the  hands  of  the  survivor,  unless  the  lien  had  at- 
tached to  the  interest  of  such  partner  before  his  death.®** 

where    the    propertj'    is    sold    for    its  Flannagan,   106  U.   S.  648,  27  L.  ed. 

full  vakte,  and  the  widow  receives  all  211,  1  Sup.  Ct.  369. 

of  the  proceeds  of  the  sale  in  excess  "^  Bell    v.    Hepworth,    51    Hun    (N. 

of  the  amount  necessary  to  pay  the  Y.)  616;  Hadley  v.  Milligan,  100  Ind. 

firm    debts,    she     is     estopped     from  49;   First  Nat.  Bank  v.  Parsons,  128 

claiming  any  interest  in  the  real  estate  Ind.  147,  27  N.  E.  486. 

as    against   the   purchasers.     Walling  "  Lindley  Partnership,  284. 

V.    Burgess,    122   Ind.   299,   22   N.    E.  ''Parsons      Partnership,      p.      442; 

419,  23  N.  E.  1076,  7  L.  R.  A.  481n.  Jones   v.    Dexter,    130   Mass.   380,   39 

«*  Peyton  v.  Stratton,  7  Gratt.  (Va.)  Am.  Rep.  459n ;  Bispham's  Prin.  Eq., 

380;  Mutual  Life  Ins.  Co.  v.  Sturges,  §    514;    Bollenbacher    v.     First    Nat. 

33  N.  J.  Eq.  328;   Daby  v.  Ericsson,  Bank,  8  Ind.  App.  12,  35  N.  E.  403; 

45  N.  Y.  786;  Roys  v.  Vilas,  18  Wis.  Skidmore  v.  Collier,  8  Hun   (N.  Y.) 

179.  50;  Harrah  v.  Davis,  —  Ind.  App.  — , 

« Scott    V.     Tupper,    8     S.    &     M.  96  N.  E.  41. 

(Miss.)  280;  Hutchinson  v.  Smith,  7  °°  Newell  v.  Townsend,  6  Sim.  419; 

Paige  (N.  Y.)  26;  Holland  v.  Fuller,  Bank  v.  McCall,  3  Binn.  (Pa.)  338. 
13   Ind.   195.     But  see  Fitzpatrick  v. 


772  INDIANA   PROBATE   LAW.  §    453 

§  453.  Survivor's  right  to  purchase. — In  the  settlement  of 
the  partnership  affairs,  the  law  gives  the  surviving  partner  au- 
thority to  sell  the  partnership  property,  but  as  he  is  held  to  be  a 
trustee,  he  cannot  purchase  the  trust  property  from  himself,  no 
matter  whether  the  attempt  be  made  by  means  of  a  public  or 
private  sale.  This  is  so  both  because  his  duty  as  seller  and  his 
interest  as  purchaser  are  in  irreconcilable  conflict,  and  because  it 
is  indispensable  to  every  legal  contract  of  sale  and  purchase, 
that  there  be  two  contracting  parties  competent  to  enter  into  a 
binding  engagement  with  each  other.  Such  sales  are  everywhere 
held  to  be  void,  and  it  is  of  no  avail  to  show  that  the  trustee 
acted  in  good  faith.  Such  transactions  are  poisonous  in  their 
tendencies,  and  violative  of  public  policy,  and  are  declared  void, 
not  for  the  purpose  of  affording  a  remedy  against  actual  mis- 
chief, but  to  prevent  the  possibility  of  wrong.  But  these  prin- 
ciples do  not  apply  or  control  in  the  case  of  a  sale  made  by  the 
personal  representative  of  a  deceased  partner  to  a  sui-viving 
partner  of  the  interest  of  his  decedent  in  partnership  business. 
Such  transactions,  when  fairly  entered  into,  will  be  upheld  and 
encouraged.  The  rule  which  would  govern  the  one  case  cannot 
control  the  other."^" 

A  sui-viving  partner,  who  purchases  of  the  administrator  of 
a  deceased  co-partner  such  deceased  co-partner's  interest  in  the 
partnership  business,  cannot,  after  such  purchase,  set  off  against 
a  judginent  for  the  purchase-money  a  claim  in  the  form  of 
a  judgment  due  himself  against  the  estate  of  such  decedent. 
By  the  purchase  of  the  deceased  partner's  interest,  such  sur- 
viving partner  waived  his  exclusive  right  to  the  possession,  sale 
or  disposition  of  the  partnership  property.  The  administrator, 
by  the  act  of  the  sale,  assumes  control  and  possession  of  the 
individual  interest  of  the  decedent  in  such  partnership  business. 
The  principle  of  mutuality  does  not  exist  between  such  claims 
so  as  to  permit  a  set-off."     Surviving  partners,  if  they  hold 

™  Valentine  v.  Wysor,  123  Ind.  47,  ""  Welborn  v.  Coon,  57  Ind.  270; 
23  N.  E.  1076,  7  L.  R.  A.  788n.  Dayhuff  v.  Dayhuff,  27  Ind.  158. 


§    454  SURVIVING    PARTNERS.  773 

claims,  or  a  balance  against  the  deceased  partners,  are  treated 
like  other  creditors. '^^ 

In  a  purchase  even  from  the  executor  or  administrator  of  the 
deceased  partner,  the  utmost  good  faith  must  be  exercised.  Such 
a  settlement  is  only  deemed  prima  facie  fair,  and  may  be  set  aside 
for  fraud,  mistake,  or  some  such  ground.''^ 

In  one  case,  where  two  of  three  administrators  sold  the  de- 
ceased partner's  interest  in  the  firm  to  the  third  administrator 
who  was  also  a  surviving  partner,  the  court  held  that  the  sale 
was  voidable  at  the  election  of  the  interested  parties,  without 
regard  to  the  good  faith  of  the  transaction.'* 

As  the  proceeds  of  the  sale  of  a  deceased  partner's  interest  in 
the  fimi  property  are  firm  assets  to  be  first  applied  to  the  pay- 
ment of  fimi  debts,  where  a  sui*viving  partner,  who  is  also  ad- 
ministrator of  his  deceased  partner's  estate,  has  bought  his  in- 
testate's interest  in  certain  partnership  property,  he  will  be 
chargeable  as  administrator  with  only  the  balance  of  the  price 
of  such  interest,  after  deducting  the  deceased  partner's  pro- 
portion of  a  firm  debt  due  the  sui-viving  partner.^^ 

In  this  state  it  is  held  that  nothing  less  than  fraud  or  collusion 
will  invalidate  an  arrangement  between  the  executor  or  admin- 
istrator of  a  deceased  partner  and  a  surviving  partner,  whereby 
the  latter  becomes  the  purchaser  of  the  deceased  partner's  share 
in  the  partnership.^*' 

§  454.  Effect  on  partnership  real  estate. — As  between  the 
partners  there  is  no  difference,  in  so  far  as  their  ultimate  rights 
and  interests  are  concerned,   whether  the  partnership  property 

"  Parsons  Partnership,  p.  450.  chaser  of  the  interest  of  his  deceased 

''Heath  v.   Waters,  40   Mich.  457;  partner    in    the    partnership    business 

INIoses  V.   Moses,  50   Ga.  9;    Kimball  from  his  legal  representatives.     Val- 

V.  Lincoln.  99  111.  578 ;  Sage  v.  Wood-  entine  v.  Wysor,  123  Ind.  47,  23  N.  E. 

in,  66  N.  Y.  578.  1076,  7  L.  R.  A.  788n. 

'"Gilbert's  Appeal,  78   Pa.   St.  266.  '^  Hart  v.   Hart,  31  W.  Va.  688,  8 

While    a   surviving  partner   may   not  S.  E.  562. 

become  a  purchaser  of  the  firm  prop-  '"Valentine  v.  Wysor,   123  Ind.  47, 

erty  at  his  own  sale,  he  is  not  dis-  23  N.  E.  1076,  7  L.  R.  A.  788n. 

qualified     from    becoming    the     pur- 


774  INDIANA  PROBATE  LAW.  g  454 

held  for  the  purposes  of  trade  or  business  consists  of  personal, 
or  real  estate,  or  both.'" 

The  entire  assets  of  a  firm,  including  both  the  real  and  personal 
property,  are  liable  for  the  payment  of  the  partnership  debts  of  the 
firm.  In  equity,  the  real  estate  belonging  to  a  partnership  is,  in 
so  far  as  the  partners  and  their  creditors  are  concerned,  treated 
merely  as  personalt}^,  and  is  governed  by  the  general  doctrines 
of  law  applicable  to  that  class  of  property ;  and  to  all  other  in- 
tents and  purposes  will  it  be  deemed  personal  property  if  the 
partners  have  in  any  way  purposely  impressed  the  character 
of  personalty  upon  it.  But  in  the  absence  of  any  agreement 
between  the  partners,  or  any  act  of  theirs  which  would  give  it 
such  an  impress,  there  is  a  wide  difference  in  judicial  opinion 
as  to  whether  it  should  be  treated  as  real  or  personal  property.'^ 

The  American  decisions  in  relation  to  real  estate  purchased 
with  partnership  funds,  or  for  the  use  of  the  firm,  may  generally 
be  considered  as  establishing  two  principles :  First,  that  such 
real  estate  is,  in  equity,  chargeable  with  the  debts  of  the  co-part- 
nership, and  with  any  balance  that  may  be  due  from  one  partner 
to  another  in  winding  up  the  affairs  of  the  firm ;  Second,  that  as 
between  the  personal  representatives  and  the  heirs-at-law  of 
the  deceased  partner,  his  share  of  the  surplus  of  the  real  estate 
of  the  partnership  which  remains  after  paying  the  partnership 
debts,  and  the  claims  of  the  different  members  of  the  firm,  as 
between  themselves,  is  to  be  considered  and  treated  as  real 
estate,'^* 

""  Story  Partnership,  §  92.  Pepper  v.  Thomas,  85  Ky.  539,  4  S, 

'^  Story  Partnership,  §  93.  Where  W.  297. 
land  is  purchased  with  partnership  ™  Buchan  v.  Sumner,  2  Barb.  Ch, 
funds  and  conveyed  to  the  partners  (N.  Y.)  165,  47  Am.  Dec.  30Sn; 
by  name,  although  in  law  they  are  Shanks  v.  Klein,  104  U.  S.  18,  26  L. 
considered  as  tenants  in  common  and  ed.  635;  Buckley  v.  Buckley,  11  Barb, 
no  notice  is  taken  of  the  equitable  re-  (N.  Y.)  43;  Goodburn  v.  Stevens,  1 
lations  arising  out  of  the  partnership,  ]\Id.  Ch.  Dec.  420.  Real  estate,  pur- 
yet  in  equity  the  partnership  prop-  chased  by  partners  and  deeded  to 
erty  is  applied  to  the  purposes  of  the  them  in  their  individual  names  and 
partnership  and  a  trust  created  for  paid  for  out  of  the  money  of  the 
the  security  of  the  partnership  debts,  firm  and  used  in  the  business  of  such 
Ross  V.  Henderson,  77  N.  Car.   170; 


§    454  SURVIVING    PARTNERS.  775 

One  of  the  purposes  and  objects  of  treating  the  partnership 
real  estate  as  personal  property,  in  equity,  is  that  it  may  be 
sold  and  conveyed  by  the  members  of  the  firm  in  the  usual  course 
of  business  without  the  wives  of  the  individual  members  joining 
in  the  conveyance.  Were  it  otherwise  the  business  of  the  firm 
might  be  stopped  and  the  partners  unable  to  realize  on  the  assets 
of  the  firm  by  reason  of  the  wife  of  one  of  the  members  refusing 
to  join  in  a  conveyance  of  the  real  estate. -° 

For  all  the  purposes  of  the  partnership  it  will  be  treated  as 
personal  property,  although  the  title  may  have  been  taken  in 
the  name  of  one  of  the  partners  instead  of  that  of  the  firm;  and 
the  wife  of  such  partner  takes  no  interest  in  the  partnership 
real  estate,  nor  is  it  necessary  that  she  should  join  in  a  deed  of 
conveyance  thereto. ^^ 

The  following  is  the  American  rule:  "Real  estate  purchased 
and  held  as  partnership  property,  is  so  treated  in  equity  and  sub- 
jected to  all  the  incidents  of  partnership  property.  If  there  be 
death,  the  sun'iving  partner,  whether  he  hold  the  whole  title, 
or  hold  it  in  part,  or  hold  none  of  it.  if  he  be  a  creditor  of  the 

firm,    is    held    to    be    firm    property,  ment  of  all  the  partnership  debts,  and 

Roberts    v.    IMcCarty,    9    Ind.    16,    68  advances  made  by  the  other  partners; 

Am.  Dec.  604.  hence  she  has  no  claim  to  dower  in 

«"  Walling  V.  Burgess,  122  Ind.  299,  the  lands   sold  or  mortgaged  by  the 

22  N.  E.  419,  23  N.  E.'  1076,  7  L.  R.  firm,    although    she    did    not   join    in 

A.  481n.  the   sale,  but  may  have  a  dower  in- 

^^  Dickey  v.  Shirk,  128  Ind.  278,  27  terest  in  the  balance  of  the  purchase- 

N.    E.    733.      Partnership    real    estate  money    so    remaining   which    is    then 

may    be    converted     into     personalty  treated   as    real    estate.      Howard    v. 

without  the  consent  of  the  wife  of  a  Priest,    5    Mete.    (Mass.)    582.     Hus- 

partner.    West  Hickory  Min.  Assn.  v.  ton   v.   Neil,  41   Ind.  504;   Loubat  v. 

Reed,  80  Pa.   St.  38.     The  widow  is  Nourse,  5  Fla.  350 ;  Greene  v.  Greene, 

only  entitled  to  her  interest  after  the  1  Ohio  535,  13  Am.  Dec.  642n ;  Sum- 

pavment  of  the  firm  debts  and  settle-  ner  v.  Hampson.  8  Ohio  328,  32  Am. 

ment     of     the     partnership     affairs.  Dec.  722 ;  Duhring  v.  Duhring,  20  Mo. 

Robertshaw  v.  Hanway,  52  Miss.  713.  174;   Richardson  v.  Wyatt,  2  Desaus 

The  dower  interest  of  the  widow  of  Eq.     (S.     Car.)     471;     Galbraith     v. 

a  deceased  partner  depends  upon  the  Gedge,  16  B.  Mon.  (Ky.)  631;  Wool- 

contingencv  whether   any   portion    of  dridge    v.    Wilkins,    3    How.    (Miss.) 

the   proceeds    of   sale   of   partnership  360;    Cobble    v.    Tomlison,    50    Ind. 

real   estate   remains    to   the   share   of  550;    Simpson  v.   Leech,  86   111.   286; 

her  deceased  husband  after  the  pay-  Brewer  v.  Browne,  68  Ala.  210. 


776 


INDIANA    PROBATE    LAW. 


454 


partnership,  has  the  same  rights  against  the  real  estate,  and  only 
the  same,  which  any  other  creditor  has.  But  this  real  estate  goes 
to  pay  the  debts  of  the  partnership,  and  only  after  they  are  paid 
does  it,  or  what  is  left  of  it,  become  the  property  of  the  partners, 
or  their  representatives,  free  from  all  claims,  and  then  it  is 
divided  between  them  as  so  much  money  capital  should  be.  But 
it  then  becomes  real  estate,  or,  rather,  all  the  incidents  and 
qualities  of  real  estate  revive.  This  rule  goes  upon  the  ground 
of  a  trust  imposed  upon  all  who  hold  the  legal  title  in  behalf  of 
all  partnership  objects;  and  that  trust  once  discharged,  the  resi- 
due resumes  its  former  character."^- 

The  Supreme  Court  of  this  state,  in  its  decisions,  has  been 
governed  by  these  principles,  and  its  rulings  have  been  in  har- 
mony with  them;  and  whatever  share  of  the  real  estate  of  a  part- 
nership, after  the  demands  and  claims  of  the  partnership  have 
been  fully  satisfied,  which  would  belong  to  a  deceased  partner, 
would  go  to  his  heirs,  and  not  to  his  personal  representatives.^^ 


^"Parsons'  Partnership  (3d  ed.),  p. 
403;  Walling  v.  Burgess,  122  Ind. 
299,  22  N.  E.  419,  23  N.  E.  1076,  7  L. 
R.  A.  481n.  The  legal  title  to  part- 
nership lands  is  held  to  be  in  the 
partners  as  tenants  in  common,  sub- 
ject in  equity  to  be  used  for  the  pay- 
ment of  the  debts  of  the  partnership, 
but  when  such  debts  are  paid,  all  the 
qualities  and  incidents  of  real  estate 
revive,  and  it  will  descend  as  other 
land.  Pepper  v.  Pepper,  24  111.  App. 
316;  Lime  Rock  Bank  v.  Phetteplace, 
8  R.  I.  56.  In  Buchan  v.  Sumner,  2 
Barb.  Ch.  165,  200,  47  Am.  Dec.  305n, 
Chancellor  Walworth  has  stated  the 
following  as  the  rule:  "Real  estate 
purchased  with  partnership  funds,  or 


is, 


for  the  use  of  the  firm,  *  * 
in  equity,  chargeable  with  the  debts 
of  the  co-partnership,  and  with  any 
balance  which  may  be  due  from  one 
co-partner  to  another  upon  the  wind- 
ing up  of  the  affairs  of  the  firm. 
Secondly,    that,    as   between   the   per- 


sonal representatives  and  the  heirs  at 
law  of  a  deceased  partner,  his  share 
of  the  surplus  of  the  real  estate  of 
the  co-partnership,  which  remains 
after  paying  the  debts  of  the  co- 
partnership, and  adjusting  all  the 
equitable  claims  of  the  different  mem- 
bers of  the  firm  as  between  them- 
selves, is  considered  and  treated  as 
real  estate."  This  view  was  an- 
nounced in  an  elaborate  opinion  upon 
a  thorough  review  of  the  American 
authorities. 

'"^  Matlock  v.  Matlock,  5  Ind.  403; 
Roberts  v.  McCarty,  9  Ind.  16,  68  Am. 
Dec.  604;  Dean  v.  Phillips,  17  Ind. 
406;  Kistner  v.  Sindlinger,  33  Ind. 
114;  Walling  v.  Burgess,  122  Ind.  299, 
22  N.  E.  419,  23  N.  E.  1076,  7  L.  R. 
A.  481n;  Grissom  v.  Moore,  106  Ind. 
296,  6  N.  E.  629,  55  Am.  Rep.  742; 
Hale  V.  Plummer,  6  Ind.  121 ;  Patter- 
son v.  Blake,  12  Ind.  436;  Scheeffer  v. 
Fithian,  17  Ind.  463;  Huston  v.  Neil, 
41   Ind.  504;  Haas  v.    Shaw,  91   Ind. 


§    455  SURVIVING    PARTNERS.  ^^J 

Whether  a  partnership  formed  for  the  business  of  buying  and 
selHng  real  estate  and  sharing  in  the  profits  converts  the  land 
absolutely  into  personalty  has  been  decided  both  ways.^*  The 
weight  of  authority,  however,  seems  to  regard  lands  bought  by 
a  firm  engaged  in  the  business  of  speculating  in  real  estate  as 
personal  property  for  all  partnership  purposes,  but  after  winding 
up  the  partnership  and  settling  its  affairs,  the  real  estate  remain- 
ing on  hand  at  that  time  resumes  its  legal  characteristics.^^ 

§  455.  Right  of  partnership  creditors. — The  common-law 
rule  in  the  case  of  a  joint  contract  is,  that  if  one  of  the  parties 
die,  his  personal  representatives  are  discharged  from  liability 
on  such  contract,  and  the  survivor  alone  can  be  sued;*''  but 
the  rule  is  different  in  equity.  Story  in  his  work  on  partnership 
says :  "The  doctrine  formerly  held  upon  this  subject  seems  to 
have  been,  that  the  joint  creditors  had  no  claim  whatever,  in 
equity,  against  the  estate  of  a  deceased  partner,  except  when 
the  surviving  partners  were  at  the  time,  or  subsequently  became 
insolvent  or  bankrupt.  But  this  doctrine  has  since  been  over- 
turned ;  and  it  is  now  held  that,  in  equity,  all  partnership  debts 
are  to  be  deemed  joint  and  several ;  and  consequently  the  joint 
creditors  have  in  all  cases  a  right  tO'  proceed  in  law  against  the 
survivors,  and  an  election  also,  to  proceed  in  equity  against  the 
estate  of  the  deceased  partner,  whether  the  survivors  be  insolvent 
or  bankrupt  or  not."" 

This  general  rule  is  modified  and  controlled  by  the  rule  that 
"so  far  as  the  partnership  property  has  been  acquired  by  means 
of  partnership  debts,  those  debts  have  in  equity  a  priority  of 
claim   to   be   discharged ;    and   the   separate   creditors   are   only 

384,   46   Am.    Rep.   607.     Before   the  ''Young  v.  Thrasher,  115  Mo.  222, 

liquidation  of  a  partnership,  its  prop-  21   S.  W.   1104;  Rovelsky  v.   Brown, 

erty  is  treated  as  personalty,  although  92  Ala.  522,  9  So.  182,  25  Am.  St.  83 ; 

partnership  assets  may  be  invested  in  Mallory  v.  Russell,  71  Iowa  63,  32  N. 

land.    Leaf's  Appeal,  105  Pa.  St.  505.  W.    102,   60   Am.    Rep.   776;    Hale   v, 

**  Markham    v.     Merrett,     7     How.  Plummer,  6  Ind.  121. 

(Miss.)  437.  40  Am.  Dec.  16\  Ludlow  '"  Chitty's  Pleadings,  p.  50. 

V.    Cooper,   4   Ohio    St.    1 ;    Coster   v.  "  Story  Partnership,  §  362. 
Clark,  3  Edw.  Ch.   (N.  Y.)   428. 


778    '  INDIANA    PROBATE    LAW.  §    455 

entitled  in  equity  to  seek  payment  from  the  surplus  of  the 
joint  fund  after  satisfaction  of  the  joint  debts ;  and  on  the  other 
hand  the  joint  creditors  should  only  look  to  the  surplus  of  the 
separate  estate  of  the  partners  after  the  payment  of  the  separate 
debts."^^ 

In  the  payment  of  partnership  debts  it  is  the  well  settled  rule 
that  partnership  property  must  be  first  applied  to  the  payment 
of  partnership  debts,  and  individual  property  to  the  payment  of 
individual  debts. -^  The  rule  laid  down,  and  which  has  been 
adopted  and  followed  by  the  Supreme  Court  of  this  state,  is  as 
follows :  "If  the  partnership  creditors  cannot  obtain  payment  out 
of  the  partnership  estate,  they  cannot  in  equity  resort  to  the 
separate  and  private  estate  until  private  and  separate  creditors 
are  satisfied:  nor  have  the  creditors  of  the  individual  partners 
any  claim  upon  the  partnership  property  until  all  the  partnership 
creditors  are  satisfied.  The  basis  of  the  general  rule  is  that  the 
funds  are  to  be  liable  on  which  the  credit  was  given.  In  con- 
tracts with  a  partnership,  the  credit  is  supposed  to  be  given  to 
the  firm,  but  those  who  deal  with  an  individual  member  rely 
upon  his  sufficiency."®'^ 

In  a  leading  case  on  this  point  the  court  says:  "If,  as  stated 
by  Chancellor  Kent,  the  reason  of  the  rule  be,  that  they  who 
give  credit  to  a  partnership  are  supposed  to  rely  on  the  firm 
for  payment,  and  those  who  credit  an  individual  member  rely 
on  his  sufficiency;  or,  if  the  additional  circumstance  be  also 
considered  as  entering  into  the  reason  of  the  rule,  that  the 
creation  of  the  partnership  debt  is  supposed  to  have  increased 
the  partnership  effects,  and  an  individual  debt  the  individual 
effects ;  we  do  not  see  any  good  reason  for  excepting  out  of  the 
rule  those  cases  where  there  are  no  joint  or  partnership  funds 

^'  Kent's   Com.,    74.      In    equity    all  be     insolvent    or    bankrupt    or     not. 

partnership  debts  are  deemed  as  joint  Warren  v.  Able,  91  Ind.  107;  Ralston 

and  several,   and,   consequently,  such  v.  Moore,  105  Ind.  243,  4  N.  E.  673 ; 

creditors  have  in  all  cases  a  right  to  Hess  v.  Lowrey,  122  Ind.  225,  23  N. 

proceed  at  law  against  the  survivors,  E.   156,   17  Am.   St.  355,  7  L.   R.   A. 

and  an   election,   also,   to   proceed   in  90. 

equity  against   the  estate  of   the  de-         *'  Hardy  v.  IMitchell,  dl  Ind.  485. 
ceased  partner,  whether  the  survivors         ""  Kent  Com.,  74. 


§    455  SURVIVING   PARTNERS.  779 

out  of  which  the  debt  could  be  made,  and  no  sui'viving  solvent 
partner.  Wh}-  should  a  partnership  creditor,  who  has  contracted 
with  a  view  to  payment  by  the  firm,  upon  a  failure  of  partnership 
effects,  encroach  upon  the  rights  of  the  creditors  of  an  individual 
member  of  the  firm,  who  have  given  him  credit  individually 
with  a  view  to  his  individual  responsibility  ?  The  creditors  of  an 
individual  member  of  a  firm  are  as  much  entitled  to  have  their 
debts  paid  out  of  the  individual  property  before  any  part  of  it 
can  be  applied  to  the  payment  of  partnership  debts,  as  are  part- 
nership creditors  to  have  partnership  property  applied  to  part- 
nership debts,  before  any  part  can  be  applied  to  individual  debts; 
and  yet  no  case  has  been  brought  to  our  notice  in  which  it  has 
been  held  that  the  insolvency  of  an  individual  member  of  a  firm 
was  any  reason  for  permitting  a  creditor  of  the  individual  to  re- 
ceive payment  out  of  the  partnership  property,  unless  there  was 
a  surplus  after  paying  partnership  debts.  The  rule,  it  seems  to 
us,  should  be  the  same  in  both  cases.  "''^ 

Rights  of  action  for  liabilities  due  a  partnership  survive  and 
vest  exclusively  in  the  surviving  partners,  but  the  liabilities  of 
the  partnership  on  the  death  of  a  partner  sui-\'ive  not  only  against 
the  surviving  members  of  the  firm,  but  also  against  the  estate 
of  the  deceased  partner.  For  this  reason  a  creditor  of  the  part- 
nership is  not  required  to  exhaust  his  remedy  against  the  sur- 
viving partners,  or  show  that  they  are  insolvent,  before  he  can 
resort  to  the  estate  of  the  deceased  partner.  On  the  death  of 
a  partner  a  creditor  of  the  firm  may  proceed  at  once  against  the 
estate  of  such  decedent  as  well  as  against  the  surviving  partners. "*- 

The  law  does  not  recognize  a  partnership  as  a  distinct  legal 
entity,  so  it  holds  the  obligation  of  a  partnership  as  the  joint 
obligation  of  the  individual  members  of  the  firm.''''  It  is  only 
when  the  firm  or  some  of  its  members  are  insolvent  that  the 
distinction  arises  between  a  partnership  debt  and  other  kmd  of 

"^  Bond  V.  Xave.  62  Ind.  505 ;  Kist-  ''  Ralston  v.    Moore,   105    Ind.  243, 

ner  v.   Sindlinger,  33  Ind.   114;   Huff  4  N.  E.  673;   Newman  v.  Gates,  165 

V.  Lutz,  87  Ind.  471;  Holland  v.  Ful-  Ind.    171,   72   N.   E.    638;    Camp    v. 

ler,  13  Ind.  195 ;  Hardy  v.  Mitchell,  67  Grant,  21  Conn.  41,  54  Am.  Dec.  321 ; 

Ind.  485 :  Bake  V.  Smiley,  84  Ind.  212.  "^  Dean    v.    Phillips,    17    Ind.    406; 


780  INDIANA  PROBATE  LAW.  §  456 

joint  obligation.  In  that  case  equity  intervenes  and  applies  the 
partnership  property  first  to  the  payment  of  partnership  debts, 
and  the  individual  property  first  to  the  payment  of  individual 
debts.'" 

Individual  creditors  of  insolvent  partners  have  priority  over 
firm    creditors   to   the    individual   property   of    such   partners."' 

Under  the  law  the  members  of  a  co-partnership  are,  personally, 
jointly  and  severally  liable  for  all  the  indebtedness  of  the  firm."*' 

§  456.    Actions   by   and   against   surviving   partner. — The 

surA'iving  partner,  being  in  legal  contemplation,  the  only  repre- 
sentative of  the  firm  in  closing  out  its  business,  the  joint  estate 
having  vested  in  him.  is  the  proper  person  to  bring  an  action  in 
favor  of  the  partnership  in  all  matters  relating  to  partnership 
affairs.  And  it  is  not  usually  necessary  that  the  personal  repre- 
sentative of  the  deceased  partner  should  be  joined  in  the  action, 
either  as  plaintiff  or  defendant."^ 

The  fact  that  the  surviving  partner  was  a  silent  or  dormant 
partner,  makes  no  difference  in  his  rights,  and  in  actions  in 
regard  to  partnership  affairs  it  is  not  necessar}-  to  join  the  ad- 
ministrator of  the  deceased  partner  as  a  co-plaintiff."^ 

The  defendant,  in  an  action  by  a  surviving  partner  on  a 
chose  in  action   belonging  to   the   partnership,   is  a  competent 

Hardy    v.    Overman,    36     Ind.     549;  debt  due,  and  it  appears  that  one  of 

Olleman    v.    Reagan,    28    Ind.     109;  the  partners  died  after  the  claim  was 

Stumph  V.   Bauer,  76  Ind.   157;   Ral-  created   but   before    suit    was    com- 

ston  V.  Moore,  105  Ind.  243,  4  N.  E.  mcnced,    the   process,    pleadings,   and 

673;  Newman  v.  Gates,  165  Ind.  171,  all  the  proceedings  may  be  amended 

72  N.  E.  638.  where  no  substantial  rights  of  the  de- 

'^  Schnell   v.    Schnell,   39  Ind.   App.  fendant  are  affected  thereby,  by  sub- 

556,  80  N.  E.  432.  stituting    as    plaintiffs    the    surviving 

^  American    Bonding  Co.   v.    State,  partners.       Cragin     v.     Gardner,     64 

40  Ind.  App.  559,  82  N.  E.  548.  Mich.  399,  31  X.  W.  206. 

•*  Swing  v.   Hill,  44  Ind.  App.  140,        "« Beach  v.   Hayward,   10  Ohio  455. 

88  N.  E.  721.  A   partnership  agreement  may,   after 

°^  Davidson  v.  Weems,  58  Ala.  187;  the  dissolution  of  the  partnership  by 

Belton  V.  Fisher,  44  111.  32;  Willson  the  death  of  one  of  the  partners,  be 

V.    Nicholson,  61    Ind.   241 ;    Nicklaus  enforced    against    the    survivor    as    a 

v.     Dahn,    63    Ind.    87.      Where    an  personal  obligation.     McLean  v.  Mc- 

action    is    brought   by    a    firm    for    a  Allister,  30  Mo.  App.  107. 


§    45^  SURVIVING    PARTNERS.  78 1 

witness  in  his  own  behalf.  The  executor  or  administrator  of 
the  deceased  partner  is  neither  a  necessary  nor  a  proper  party 
to  such  an  action,  nor  by  making  him  a  party  can  he  be  deprived 
of  the  right  to  testify  as  a  witness  in  the  action.'''' 

In  an  action  by  a  surviving  partner  upon  any  right,  demand, 
or  chose  in  action  belonging  to  the  partnership,  the  complaint 
should  set  out  the  names  of  all  the  partners  constituting  the 
firm,  and  should  also  show  how  the  plaintiff  became  survivor.'- 

As  the  title  to  the  choses  in  action  of  the  partnership  rests  in 
the  surviving  partner  individually,  he  may  join  in  the  same  action 
partnership  claims  with  his  own  individual  ones,  or  unite  in 
the  same  action  claims  against  the  same  person  due  two  dif- 
ferent firms  of  which  he  is  sunaving  partner. - 

While  in  suits  in  relation  to  the  partnership  business  the  better 
practice  would  indicate  that  such  actions  should  be  brought  by 
the  sur\aving  partner  as  such,  it  is  not  necessarv"  that  they  should 
be.  He  may  sue  in  his  own  right  or  in  his  representative  char- 
acter as  surviving  partner.  In  either  case,  however,  the  action 
should  clearly  indicate  to  the  defendant  whom  he  is  called  to 
answer.^ 

Where  he  brings  suit  on  a  demand  due  the  firm,  a  promise  to 
him  by  the  debtor  after  the  co-partner's  death,  will  take  the  case 
out  of  the  statute  of  limitations.  The  surviving  partner  com- 
bines the  character  of  an  original  party  to  the  contract  and  that 
of  representative  of  the  deceased  partner."* 

But  in  his  representative  capacity  he  will  not  be  allowed  to 
prejudice  the  estate  of  the  deceased  partner  by  admissions  or 
payments.^ 

The  rules  above  noted  apply  as  well  in  suits  against  a  sur- 
viving partner.     In  actions  against  him  upon  indebtedness  of 

°«Nicklaus  v.  Dahn,  63  Ind.  87.  203;   Berolzheimer  v.   Strauss,  51   N. 

^Hubbell  V.  Skiles,  16  Ind.  138.  Y.   Super.  96;   Farwell   v.   Davis,   66 

-Smith  V.  Wood,  31  Md.  293;  Staf-  Barb.   (N.  Y.)   1Z\  Header  v.  Leslie, 

ford  V.   Gold,  9   Pick.    (Mass.)    533;  2  Vt.  569. 

Adams  v.  Hackett,  27  N.  H.  289,  59  "Barney    v.    Smith,    4    Har.    &    J. 

Am.  Dec.  Zld;  Nehrboss  v.  Bliss,  88  (Md.)   485,  7  Am.  Dec.  679. 

N.  Y.  600.  '  Way  v.  Bassett,  5  Hare  54. 

'  Vandenheuvel  v.   Storrs,  3   Conn. 


782  INDIANA  PROBATE  LAW.  §  457 

the  firm,  he  may  be  sued  individually  or  as  surviving  partner; 
the  fact  of  the  partnership  death  or  survivorship  need  not  be 
noticed;  and  demands  against  him  individually  may  be  joined 
with  claims  due  from  the  partnership." 

A  promise  to  pay  a  debt  of  the  partnership  by  the  surviving 
partner  is  equivalent  to  an  allowance  of  a  claim  by  the  court, 
and  will  stop  the  running  of  the  statute  of  limitations." 

The  surviving  partner  not  being  an  administrator,  it  is  not 
necessary  that  a  claim  should  be  presented  to  him  for  allowance 
before  suit  can  be  brought  upon  it.* 

•  The  right  of  action  to  collect  the  debts  and  assets  due  to  a 
partnership  where  any  of  the  partners  are  dead  is  vested  by  law 
exclusively  in  the  surviving  partner  or  partners."  Nor  does  the 
failure  of  such  survivor  to  inventory  any  such  debt  or  asset 
affect  his  exclusive  right  to  sue  for  and  recover  it.^*^ 

§  457.  As  to  heirs  of  a  deceased  partner. — As  a  rule,  in  the 
absence  of  special  circumstances,  the  heirs  of  the  deceased  part- 
ner have  no  locus  standi  against  the  surviving  partner,  and,  as  a 
general  rule,  an  action  to  compel  a  surviving  partner  to  account 
can  only  be  maintained  by  the  personal  representative  of  the 
deceased  partner,  yet  where  it  is  shown  that  there  is  collusion 
between  the  surviving  partner  and  such  personal  representative, 
the  latter  refusing  to  compel  an  account,  a  court  of  equity  will 
entertain  such  an  action  on  behalf  of  the  heirs. ^^ 

And  a  court  of  equity  will  ordinarily  not  entertain  jurisdic- 
tion of  such  an  action  until,  by  its  decree,  a  final  adjustment  of 
the  business  of  the  partnership  can  be  effected." 

"  Culbertson   v.   Townsend,    6    Ind.  Mcintosh  v.  Zaring,  150  Ind.  301,  49 

64;   Butler  v.  Kirby,  53  Wis.  188,  10  N.  E.  164. 

N.  W.  Z??)-,  Friermuth  v.  Friermuth,  "Valentine  v.  Wysor,   123  Ind.  47, 

46  Cal.  42;   Offutt  v.   Scott,  47  Ala.  23   N.   E.   1076,  7   L.   R.   A.   788n;   2 

104.  Lindley  Partnerships,  494;  Harrison  v. 

'Denny  v.  Turner,  2  Mo.  App.  52.  Righter,  3  Stock.   (N.  J.)  389;  Gris- 

'  Carr  v.  Catlin,  13  Kan.  393.  som  v.  Moore,  106  Ind.  296,  6  N.  E. 

'Mcintosh  V.  Zaring,  150  Ind.  301,  629,  55  Am.  Rep.  742. 

49  N.  E.  164 :  Roys  v.  Vilas,  18  Wis.  "  Valentine  v.  Wysor,  123  Ind.  47, 

179;  2  Bates  Part..  §  1147.  23  N.   E.   1076,    7    L.    R.    A.    788n; 

"Morrison  v.  Kramer,  58  Ind.  38;  Thompson  v.  Lowe,  111  Ind.  272,  12 


o 


§    458  SURVIVING    PARTNERS.  78 

The  heirs  of  a  deceased  partner  have  no  interest  as  such  in 
the  property  of  the  firm;  their  only  remedy  is  to  compel  the  sur- 
viving partner  to  account  for  the  surplus  after  the  settlement  of 
all  the  partnership  liabilities.  The  rule  of  law  is  that  a  sur- 
viving partner  has  the  right  to  the  control  and  possession  of  the 
property  of  the  firm,  and  that  he  may  dispose  of  it  in  order  to 
adjust  the  partnership  accounts,  and  is  only  liable  to  the  repre- 
sentatives of  the  deceased  partner  for  what  remains  in  his  hands 
after  the  partnership  affairs  are  settled;  and  the  rights  of  the 
heirs  of  such  deceased  partner  are  subject  to  the  adjustment  of 
all  claims  between  the  partners,  and  attach  only  to  the  surplus 
which  remains  when  the  partnership  debts  are  all  paid  and  the 
affairs  of  the  firm  wound  up.  Such  rights  do  not  attach  until 
all  the  debts  are  paid.^^ 

§  458.  Statutory  administration  of  partnership. — A  part- 
nership estate,  after  a  dissolution  of  the  partnership  by  the  death 
of  one  of  the  partners,  must  be  administered  upon  in  some  way. 
As  in  the  case  of  other  estates,  the  firm  assets  must  be  devoted 
first  to  the  payment  of  the  partnership  debts,  and  second,  the 
surplus  distributed  to  those  entitled  thereto.  The  settlement  of 
such  estate  is,  in  many  respects,  similar  to  the  settlement  of  de- 
cedent's estates,  and  is  governed  by  the  same  general  rules. 

The  preference  in  such  administration  is  first  to  the  surv^iving 
partner  or  partners.  The  statute  provides  that  in  case  of  the 
death  of  one  partner  the  surviving  partner  or  partners  shall  pro- 
ceed to  settle  and  close  up.  as  speedily  as  may  be  practicable, 
the  partnership  affairs  in  accordance  with  the  law  now  in  force 
and  the  provisions  of  this  act.^^ 

Such  preference  continues  for  seventy  days  after  the  death 
of  the  partner,  and  such  sunnvor,  like  an  administrator,  must 

N    E   476;  Scott  v.  Searles,  13  Miss.  Burgess.  122  Ind.  299,  22  N.  E.  419, 

25  23   N.   E.   1076,    7    L.    R.    A.    481n; 

''  Valentine  v.  Wysor,   123  Ind.  47,  Deeter  v.  Sellers,  102  Ind.  458,  1  N. 

23  N.  E.  1076,  7  L.  R.  A.  788n ;  Gris-  E.  854. 

som  V.  Moore,  106  Ind.  296,  6  N.  E.  "  Burns'  R.  S.  1908,  §  9712. 
629,    55    Am.    Rep.    742;    Walling  v. 


784  INDIANA    PROBATE    LAW.  §    458 

file  an  inventory,  appraisement  and  bond.  The  filing  of  these, 
however,  are  only  required  to  insure  a  due  and  proper  admin- 
istration of  his  trust,  and  to  do  the  precise  thing  the  law  has 
always  required  him  to  do.  The  nature  and  extent  of  the  in- 
terest in  the  partnership  property  which  pass  to  him  on  the 
death  of  his  partner  are  not  changed  or  affected  in  any  way  by 
the  statute,  nor  does  the  statute  purport  to  direct  or  affect  the 
manner  in  which  he  may  dispose  of  and  apply  the  firm  assets. 
In  this  respect  the  surviving  partner  is  left  precisely  where  he 
was  before  the  enactment  of  the  statute. ^^ 

In  one  case  it  is  said :  "This  act,  while  it  leaves  the  title  of 
the  property,  and  upon  filing  the  inventory,  appraisement  and 
bond,  the  possession  of  the  same,  in  the  sui"viving  partner,  gives 
the  supervising  control  to  the  court  having  probate  jurisdiction, 
and  appears  to  be  modeled  upon  the  act  for  the  settlement  of 
decedents'  estates.  The  duties  and  liabilities  of  the  surviving 
partner  who  undertakes  to  settle  the  partnership  business  under 
this  act  are  similar  to  the  duties  required  of  administrators, 
executors  and  guardians."^® 

The  appointment  and  qualification  of  such  surviving  partner, 
under  the  statute,  is  not  the  source  of  his  power  to  administer 
the  affairs  of  the  partnership,  but  merely  a  condition  of  the 
exercise  of  an  already  existent  power.  His  failure  to  qualify, 
etc.,  as  required  by  the  statute,  only  deprives  him  of  the  power 
to  act  in  the  closing  out  of  such  business,  in  case  some  one  else 
is  appointed  for  that  purpose." 

"*  First  Nat.  Bank  v.   Parsons,   128  the   probate  court   for   the   beneficial 

Ind.   147,  27  N.  E.  486.     Where  the  interest  in  real  estate,  but  if  there  are 

same  person  is  administrator  of  the  no  debts,  and  he  has  leased  the  land 

deceased  partner  and  also  surviving  without  the  order  of  court,  he  must 

partner  of  the  firm  an  allowance  by  account    for   the   rents.      Hartnett   v. 

him  of  a  partnership  note  against  the  Fegan,  3  Mo.  App.  1. 
firm   is  not  an  allowance  as  against        "Gregory  v.  Menefee,  83  Mo.  413; 

the     individual     estate.       Burton     v.  Holman  v.  Nance,  84  Mo.  674 ;  Blaker 

Rutherford,  49  Mo.  255.  v.    Sands,    29    Kan.    551 ;    Nelson    v. 

"State  v.   Matthews,  129  Ind.  281,  Hayner,     66     111.     487;     Walling    v. 

28  N.  E.  703.    The  surviving  partner  Burgess,  122  Ind.  299,  22  N.  E.  419,  23 

who    has    qualified    must   account   to  N.  E.  1076,  7  L.  R.  A.  481n. 


§    459  SURVIVING    PARTNERS.  785 

The  statute  sets  out  the  proceedings  intended  to  govern  in 
the  settlement  of  partnerships  by  a  surviving  partner.  The  prin- 
ciples embodied  in  the  statute  are  in  a  general  way  those,  which 
in  the  absence  of  a  statute  would  be  in  equity,  but  such  settle- 
ments must  be  made  in  accordance  with  the  statutory  provisions. ^^ 
The  jurisdiction  of  the  probate  court  over  the  settlement  of  the 
affairs  of  a  surviving  partnership  is  as  exclusive  as  it  is  over  that  • 
of  a  decedent's  estate." 

§  459.  Required  to  file  inventory  and  appraisement. — Such 
surviving  partner,  or  partners,  within  sixty  days  after  such 
death,  shall  proceed  to  make  a  full,  true  and  complete  inven- 
tory of  the  estate,  goods,  chattels,  rights,  credits,  moneys  and 
effects  within  his  or  their  knowledge,  and  shall  cause  the  same 
to  be  appraised  by  two  competent  freeholders  or  land-holders 
of  the  neighborhood,  one  of  whom  shall  be  selected  by  the  sur- 
viving partner  or  partners,  and  the  other  by  the  clerk  of  the 
court  having  probate  jurisdiction,  making  a  full  and  complete 
schedule  thereof,  which  said  schedule  and  appraisement  shall  be 
sworn  to  by  said  appraisers  before  the  clerk  of  such  court,  speci- 
fying that  the  property  described  in  said  schedule  is  appraised 
at  a  true  cash  value,  which  schedule  shall  by  said  appraisers 
be  filed  in  the  office  of  the  clerk  of  the  court  having  probate 
jurisdiction,  immediately  after  the  completion  thereof.-" 

While  the  statute  makes  it  the  duty  of  a  surviving  partner  to 
file  an  inventory  of  the  assets  and  a  list  of  the  partnership  lia- 
bilities in  the  clerk's  office,  there  is  no  forfeiture  of  his  right 
to  the  partnership  property,  or  to  a  settlement  of  the  partner- 
ship affairs,  attached  for  his  failure  to  do  so;  and  if  the  survi- 
vor proceeds  to  settle  the  partnership,  accounts  for  the  assets 
and  pays  the  debts,  he  will  not  be  deprived  of  any  right  which 
he  would  have  possessed  if  he  had  filed  the  inventory  of  assets 
and  list  of  liabilities  as  provided  by  statute."^ 

"  Harrah  v.  State,  38  Ind.  App.  495,  "■'  Walling  v.  Burgess,  122  Ind.  299, 

'76  N.  E.  443,  77  N.  E.  747.  22  N.  E.  419,  23  N.  E.  1076,  7  L.  R. 

''  Harrah  v.  State,  38  Ind.  App.  495,  A.  481n ;  Morrison  v.  Kramer,  58  Ind. 

76  N.  E.  443,  77  N.  E.  747.  38.     In  First   Nat.  Bank  v.   Parsons, 

="  Barns'  R  S.  1908,  §  9713.  128  Ind.  147,  27  N.  E.  486,  the  court 

50— Pro.  Law. 


786  INDIANA    PROBATE    LAW.  §    460 

§  460.  Must  file  list  of  liabilities,  affidavits,  etc. — It  shall  be 
the  duty  of  such  surviving  partner  or  partners,  immediately 
upon  the  filing  of  such  schedule  of  appraisement,  to  file  with  the 
clerk  of  the  court  having  probate  jurisdiction  his  or  their  affi- 
davit that  the  schedule  filed  by  said  appraisers  contains  a  full, 
true,  and  complete  list  of  all  property,  rights,  credits,  moneys  and 
effects  belonging  to  said  firm,  and  at  the  same  time  he  or  they 
shall  file  a  full,  true  and  complete  list  of  all  the  liabilities  of  said 
firm  at  the  time  of  the  death  of  said  deceased  partner,  to  which 
said  list  of  liabilities  said  surviving  partner  or  partners  shall 
also  append  his  or  their  affidavit  testifying  to  the  correctness 
thereof.^^ 

§  461.  Bond  and  sureties. — Upon  the  filing  of  the  inven- 
tory, appraisement,  and  list  of  liabilities,  such  surviving  partner 
or  ])ai-tners  shall  execute  a  bond  payable  to  the  state  of  Indiana, 
in  a  sum  double  the  amount  of  the  interest  of  said  decedent,  as 
shown  by  said  inventory,  appraisement,  and  list  of  liabilities  on 
file  conditioned  for  the  faithful  performance  of  his  or  their  trust, 
signed  by  at  least  two  good  and  sufficient  freehold  sureties,  to 
be  approved  by  the  clerk  of  said  court.  If  such  surviving  part- 
ner or  partners  shall  fail  to  file  such  bond  within  ten  days 
after  the  filing  of  such  inventor}^  and  appraisement  the  judge  of 
the  court  having  probate  jurisdiction  shall  appoint  a  receiver 
to  take  charge  of  the  assets  of  such  firm,  who  shall  proceed  to 
settle  the  same  as  though  a  voluntary  assignment  of  the  assets 
of  said  firm  had  been  made  for  the  benefit  of  creditors." 

The  sureties  upon  the  bond  of  such  surviving  partner  or  part- 
says  :  "The  statute  relative  to  sur-  in  the  partnership  property'  which  pass 
viving  partners  (Section  6046,  et  seq.  to  him  on  the  death  of  his  partner 
R.  S.  1881)  does  nothing  more  than  are  not  changed  or  affected  in  any 
place  certain  restrictions  upon  the  way  by  the  statute."  Citing  Emerson 
power  of  surviving  partners,  by  re-  v.  Senter,  118  U.  S.  3,  30  L.  ed.  49,  6 
quiring  the  filing  of  inventories,  ap-  Sup.  Ct.  981.  See  Harseim  v.  Booth, 
praisements,  lists  of  liabilities,  etc.,  134  Ind.  281,  33  N.  E.  1016. 
and  by  requiring  the  filing  of  a  bond.  "  Burns'  R.  S.  1908,  §  9714. 
The  nature  and  extent  of  the  interest        ^  Burns'  R.  S.  1908,  §  9715. 


§   461  SURVIVING   PARTNERS.  787 

ners  may  be  released  as  in  cases  of  sureties  upon  the  bonds  of 
executors  or  administrators.^^ 

The  provisions  of  this  statute,  requiring  the  surviving  partner 
to  file  a  bond,  are  only  applicable  to  cases  arising  after  the  pas- 
sage of  the  act.-^ 

The  surv'iving  partner  is  liable  upon  such  bond  for  his  wrong- 
ful conversion  of  the  partnership  estate,  the  bond  being  available 
to  creditors  and  others  interested  in  the  proper  application  of 
such  assets,  like  the  bond  of  an  administrator  or  guardian. ^"^ 

But  before  a  creditor  can  establish  a  liability  upon  such 
bond  for  a  failure  to  pay  his  claim,  it  must  first  have  been  pre- 
sented to  the  surviving  partner,  and  by  him  recognized  as  valid. "^ 
The  measure  of  damages  in  a  suit  upon  such  bond  for  a  failure 
to  apply  the  assets  of  the  firm  to  the  payment  of  the  debts, 
is  the  amount  of  the  funds  in  the  surviving  partners'  hands 
applicable  to  such  debts. ^^ 

After  a  demand  is  made  by  one  who  is  lawfully  entitled  to 
receive  money  from  a  surviving  partner,  such  partner's  posses- 

-"' Burns'  R.  S.  1908,  §  9719.  The  cipal  removed  by  the  court,  be  re- 
section relative  to  release  of  sureties  leased  from  any  liability  for  any  mal- 
upon  bonds  of  executors  or  adminis-  feasance  or  misfeasance  of  such 
trators  is  as  follovirs :  "Any  surety  principal  thereafter  occurring,  but 
upon  any  bond  of  any  executor,  ad-  shall  remain  liable  for  his  prior  acts 
ministrator,  administrator  virith  the  and  omissions.  And  if  a  new  bond 
will  annexed,  or  de  bonis  non,  may  be  executed,  the  principal  and  sur- 
apply  to  the  circuit  court  approving  eties  therein  shall  be  and  continue 
such  bond  to  be  released  therefrom,  liable  for  the  administration  of  the 
by  filing  his  request  therefor  with  the  estate  or  execution  of  the  will,  as  the 
clerk  of  said  court,  and  giving  ten  case  may  be,  in  like  manner  and  to 
days'  notice  thereof  to  the  principal  the  same  extent  that  the  obligors  in 
in  such  bond.  Upon  proof  of  such  the  original  bond  would  have  been 
notice,  the  court  shall  order  such  bound  had  it  continued  in  force." 
principal,  within  a  time  to  be  fixed  by  Burns'  R.  S.  1908,  §  2769. 
the  court,  not  exceeding  five  days,  to  ^  Adams  v.  Marsteller,  70  Ind.  381. 
execute  a  new  bond  with  penalty  and  ^  Miller  v.  Kingsbury,  128  111.  45,  21 
sureties  to  the  approval  of  the  court.  N.  E.  209;  Green  v.  Virden,  22  Mo. 
Upon  failure  to  execute  such  new  506;  Carr  v.  Catlin,  13  Kan.  393. 
bond  within  the  time  limited,  he  shall  ^  State  v.  Woods,  36  Mo.  1Z. 
forthwith  be  removed  by  the  court;  ^Miller  v.  Kingsbury,  128  111.  45, 
and  such  surety  shall,  as  soon  as  such  21  N.  E.  209. 
new  bond  is  furnished  or  such  prin- 


788  INDIANA  PROBATE  LAW.       *        §  462 

sion  becomes  wrongful  and  tortious,  and  under  proper  circum- 
stances such  surviving  partner  will  be  guilty  of  embezzlement.** 
Where  a  surviving  partner  has  made  a  final  report  and  the 
same  has  been  approved  by  the  proper  court,  such  approval  will 
be  an  adjudication  of  the  trust,  and  will  bar  any  action  upon  the 
bond.=^" 

^J  462.  Settlement  and  distribution. — Upon  the  settlement 
of  such  partnership  business,  the  surviving  partner  or  partners 
shall  report  the  same  to  the  proper  court,  and  pay  the  surplus 
belonging  to  such  deceased  partner  into  court,  to  be  paid  out 
on  the  order  of  the  judge  to  such  person  or  persons  as  may  be 
entitled  to  the  same  by  law.  Such  surviving  partner  or  part- 
ners shall  settle  such  partnership  business  within  two  years  from 
the  filing  of  such  inventory  and  appraisement,  unless  the  c(nn-t, 
for  good  cause  shown,  shall  grant  a  longer  time.^^ 

The  mere  payment  by  a  surviving  partner  of  the  firm  debts 
is  not  necessarily  a  final  and  complete  settlement  of  the  part- 
nership matters;  there  may  be  debts  to  collect,  accounts  to  settle 
and  statements  to  make  before  the  final  condition  of  the  firm 
can  be  known. ^- 

The  partnership  property  and  effects  are  charged  witli  the 
partnership  debts,  and  the  rights  of  the  several  members  of  a 
firm  to  such  property  and  effects  are  subject  to  the  rights  of  the 

="  State  V.   Matthews,   129  Ind.  281,  '' Krutz     v.     Craig,     53     Ind.     561. 

28  N.  E.  703.  Where,  however,  the  complaint  shows 

'"  Harrah  v.  State,  38  Ind.  App.  495,  that  the  debts  of  the  partnership  are 

76  N.  E.  443.  77  N.  E.  747.  all  paid,  and  that  the  only  remaining 

''  Burns'  R.  S.  1908.  §  9718.    Where  assets   of   the  firm  are  the  unsettled 

it  appears  that  the  surviving  partner  individual    accounts    of   the    partners, 

has  paid  all  the  partnership  debts,  and  and  states  the  nature  and  extent  of 

that  the  estate  of  the  deceased  part-  the    defendant's    indebtedness    to    the 

ner  is  indebted  to  him,  it  is  essential  plaintiff,    on    account    of    the    firm's 

to  the  right  of  the  heirs  to  call  him  transactions,  an  averment    of    a    de- 

to   account  that  they  make  it  appear  mand  before  suit  brought  is  not  neces- 

that  he  has  in  his  hands  partnership  sary  to  the  sufficiency    of    the    com- 

property    in    excess    of    the    amount  plaint.     Anderson    v.    Ackerman,    88 

required  to  reimburse  himself.     Val-  Ind.  481. 
entine  v.  Wysor,   123  Ind.  47,  23   N. 
E.  1076,  7  L.  R.  A.  788n. 


§    4^2  SURVIVING    PARTNERS.  789 

partnership  creditors;  therefore,  upon  a  dissolution  of  the  part- 
nership, there  can  be  no  proper  distribution  of  the  firm  property 
among  the  members  of  such  fimi  imtil  after  all  the  partnership 
debts  are  paid.^" 

Nor  until  after  a  settlement  of  the  partnership  business  can 
the  representative  of  a  deceased  partner  claim  or  take  any  por- 
tion of  the  property  or  assets  of  the  firm,  or  assume  any  pos- 
session or  control  over  such  assets.^* 

And  it  is  true,  as  a  general  rule,  that  courts  will  entertain 
matters  relating  to  partnership  accounts  between  partners,  un- 
til, by  its  judgment  or  decree,  a  final  adjustment  of  the  partner- 
ship business  can  be  effected;  that  is,  mitil  the  accounts  of  the 
partners,  or  the  affairs  of  the  firm,  are  so  far  adjusted  and  settled 
that  nothing  remains  except  to  ascertain  the  final  state  of  the 
account  bet\Yeen  the  partners,  and  until  then  no  action  can  be 
maintained  by  one  partner  against  the  other  in  respect  to  par- 
ticular items  of  account  pertaining  to  the  partnership  business.^^ 

Where  a  surviving  partner,  in  his  settlement  of  the  partner- 
ship business,  exhausts  all  the  partnership  assets  in  the  payment 
of  the  debts  against  said  partnership  without  satisfying  all  of 
said  debts,  and  is  compelled  to  pay  the  remainder  of  them  out 
of  his  own  means,  he  is  entitled  to  recover  from  the  estate  of  his 
deceased  partner  one-half  the  amount  so  paid.  The  Supreme 
Court  says :  "It  was  not  a  debt  against  the  firm,  and  could  not 
share  in  the  distribution  of  the  partnership  assets.  It  was  an 
individual  debt  due  from  the  estate  of  the  decedent,  and  we  are 
not  aware  of  any  principle  of  equity  that  denies  him  the  right 
to  a  distributive  share  of  the  property  of  the  decedent  with  the 
other  separate  creditors."^® 

The  surviving  partner  has  a  lien  upon  the  balance  of  assets 

''  Holland   V.    Fuller,    13    Ind.    195 ;  ''  Willson  v.  Nicholson,  61  Ind.  241. 

Story  Partnerships,  §  360;  Deeter  v.  ^Thompson  v.  Lowe,  111  Ind.  272, 

Sellers,    102   Ind.   458,   1    N.   E.   854;  12  N.  E.  476 :  Valentine  v.  Wysor,  123 

Grissom  v.  Moore,  106  Ind.  296,  6  N.  Ind.  47,  23   N.   E.   1076,  7  L.   R.   A. 

E.  629,  55  Am.  Rep.  742;  Valentine  788n. 

V.  Wysor,  123  Ind.  47,  23  N.  E.  1076,  ^  Olleman  v.  Reagan,  28  Ind.   109; 

7  L.  R.  A.  788n ;  State  v.  Day,  3  Ind.  Huff  v.  Lutz,  87  Ind.  471. 
App.  155,  29  X.  E.  436. 


790 


INDIANA    PROBATE   LAW.  §    462 


in  his  hands  to  secure  any  balance  due  from  the  deceased  part- 
ner on  a  settlement  of  the  partnership.  Such  lien,  however,  re- 
lates to  such  debts  as  are  due  to  the  surviving  partner  from 
the  finn,  but  not  to  private  debts  due  him  from  the  deceased 
partner.^^ 

It  is  the  surviving  partner's  duty  to  reduce  the  assets  of  the 
fimi  to  money,  and  after  deducting  the  necessary  expenses,  to 
apply  the  money  to  the  payment  of  the  partnership  debts,  and  if 
any  surplus  remains  to  account  for  same  with  the  estate  of  the 
deceased  partner  and  pay  over  to  such  estate  its  share  of  such 
surplus.    And  no  conversion  arises  until  a  failure  to  so  account.'* 

There  is  a  very  marked  difference  between  the  law  governing 
the  final  settlement  of  decedents'  estates  and  the  law  governing 
the  settlement  of  the  business  and  affairs  of  a  partnership  dis- 
solved by  the  death  of  a  member.  In  the  former  case  notice 
brings  every  person  interested  in  the  estate  under  the  jurisdiction 
of  the  court.  Notice  is  required  to  be  given  of  the  taking  out  of 
letters  and  of  the  final  settlement  of  the  estate,  thus  bringing 
creditors,  heirs,  and  all  persons  interested  within  the  jurisdiction 
of  the  court;  and  all  are  bound  by  the  orders  and  decrees  made 
by  the  court  in  the  settlement  of  the  estate.  But  nothing  of  this 
kind  is  contemplated  or  required  by  the  statute  providing  for  the 
settlement  of  a  partnership  by  a  surviving  partner.  Such  settle- 
ment does  not  have  the  binding  force  and  effect  of  a  judgment 
only  as  to  those  matters  directly  presented  in  the  final  settle- 
ment.'" 

The  statute  requires  the  partnership  business  to  be  settled 
within  two  years  unless  for  good  cause  shown  the  court  shall 
grant  a  longer  time.  At  the  end  of  such  time  it  is  the  duty  of  the 
surviving  partner  to  make  a  final  report  to  the  proper  court,  and 

"Mof?att  V.  Thomson,  S  Rich.  Eq.  "*  American   Bonding   Co.   v.    State, 

(S    Car.)    155,    57    Am.    Dec.    IZI ;  40  Ind.  App.  559,  82  N.  E.  548. 

Mack    V.     Woodruff,     87     111.     570;  ^  Schnell  v.    Schnell,  39  Ind.   App. 

Shearer   v.    Shearer,    98   Mass.    107;  556.  80  N.  E.  432. 
Talbot  V.   Pierce,  14  B.  Mon.    (Ky.) 
195;  Gray  v.  Palmer,  9  Cal.  616. 


§    463  SURVIVING    PARTNERS.  791 

to  pay  the  surplus  belonging  to  the  deceased  partner  into  court 
to  be  paid  out  upon  the  order  of  the  judge/'' 

The  executor  or  administrator  of  a  deceased  partner  if  not 
himself  a  member  of  the  firm,  may  agree  with  the  survivor  that 
the  share  of  the  deceased  may  be  ascertained  in  some  particular 
way,  or  taken  at  a  certain  value,  and  a  final  settlement  and  ac- 
counting on  such  basis  made  between  them  in  good  faith  will  be 
upheld;"'  or  the  partnership  articles  may  give  to  the  surviving 
partner  an  option  to  take  the  firm  assets  at  a  valuation  to  be  de- 
termined in  a  manner  prescribed  in  such  agreement.*" 

§  463.  Compensation  to  the  surviving  partner. — The  rule 
is  that  usually  a  sun'iving  partner  will  not  be  allowed  compensa- 
tion for  winding  up  the  partnership  business,  and  the  services 
must  be  of  an  extraordinary  and  perplexing  nature  to  justify 
a  departure  from  this  rule." 

Death  being  one  of  the  risks  necessarily  incurred  at  the  forma- 
tion of  a  partnership,  a  surviving  partner,  who  winds  up  the 
business  of  the  finn,  is  entitled  to  no  extra  compensation  for  so 

doing.** 

While  this  is  the  general  rvile,  yet  where  a  surviving  partner 
performs  extra  services,  in  excess  of  those  needed  in  the  mere 
winding  up  of  the  partnership  business,  he  should  be  compensated 
therefor.*^ 

«•  Harrah  v.  State,  38  Ind.  App.  495,  7  N.  E.  710 ;  Terrell  v.  Rowland,  86 

76  N.  E.  443,  11  N.  E.  747.    And  for  Ky.    67,   4    S.    W.   825 ;    Maynard   v. 

any  unnecessary  delay  in  such  settle-  Richards,  166  111.  466,  46  N.  E.  1138, 

ment  he  may  be  charged  interest  on  57  Am.  St.  145. 

the   funds   in   his   hands.     Harrah  v.        ""  Shelton  v.   Knight,  68   Ala.   598; 

Davis,  —  Ind.  App.  — ,  96  N.  E.  41.  Griggs  v.  Clark,  23  Cal.  427;  Schenkl 

"Holladay  v.  Land  &c.  Co.,  6  C.  C.  v.   Dana,    118   Mass.   236;   Loomis  v. 

A    (U.  S.)  560;  Sternberg  v.  Larkin,  Armstrong,  49  Mich.  521,   14  N.  W. 

58  Kan   201,  48  Pac.  861,  11  L.  R.  A.  505 ;    Scudder  v.   Ames,  89  Mo.  496, 

J95  14  S.  W.  525;   Denver  v.  Roane,  99 

*=  Rohrbacher's  Estate,   168  Pa.   St.  U.   S.  355,  25  L.  ed.  476. 
158,  32  Atl.  30;   Rankin  v.  Newman,        "Sears   v.    Munson,  23   Iowa  380; 

114  Cal.  635.  46  Pac.  742,  34  L.  R.  A.  Xewell  v.  Humphrey,  Zl  Vt.  265;  Gy- 

255  '  ger's   Appeal,   (>2   Pa.   St.   IZ,   1   Am. 

*=' O'Reilly   V.   Brady,   28   Ala.    530;  Rep.  382;   Cameron  v.  Francisco,  26 

Freeman  v.   Freeman,   142  Mass.  98,  Ohio   St.    190;   Calvert  v.   Miller,  94 


792  INDIANA    PROBATE    LAW.  §    464 

\\'here  the  partnership  assets  consisted  of  a  large  landed  estate, 
and  the  winding  up  involved  its  management,  paying  taxes,  de- 
fending lawsuits,  etc.,  the  labor  being  extraordinan-  and  per- 
plexing, compensation  was  allowed.*®  And  where  the  partner- 
ship was  a  mercantile  finn.  one  of  the  surviving  partners  of 
which  was  a  lawyer  upon  whom  devolved  the  collection  of  the 
notes  and  accounts  of  the  firm,  he  was  allowed  the  usual  value 
of  professional  sen-ices  upon  all  those  upon  which  it  was  nec- 
essai-\-  to  sue,  but  nothing  upon  those  collected  without  suit.*' 

^^'he^e  a  surviving  partner  dies  while  engaged  in  settling  the 
partnership  business,  his  executor  or  administrator  succeeds  to 
such  duty  and  becomes  entitled  to  possession  of  the  effects  of 
the  partnership  which  remain,  and  is  charged  with  the  duty  of 
completing  such  settlement,  and  he  is  entitled  to  compensation 
for  his  services  in  the  perfonnance  of  such  duty,  to  be  paid  out 
of  the  partnership  funds.** 

§  464.  When  receiver  may  be  appointed. — If  such  surviv- 
ing partner  or  partners  shall  fail  to  file  such  inventory,  appraise- 
ment, and  list  of  liabilities,  and  bond  as  required,  or  shall  fail  or 
refuse  to  take  upon  him  or  themselves  the  settlement  of  the  busi- 
ness of  such  firm,  the  judge  of  the  court  having  probate  juris- 
diction, upon  petition  filed  by  any  one  interested  in  the  settle- 
ment of  such  partnership,  shall  appoint  a  receiver  to  settle  the 
affairs  of  such  partnership,  who  shall  proceed  to  settle  the  same 
as  though  a  voluntary  assignment  for  the  benefit  of  creditors 
had  been  made  by  the  surviving  partner  or  partners  of  such 
firm.*^ 

Any  person  interested  in  the  settlement  of  such  partnership 
business  may  file  a  petition  in  the  court  having  probate  juris- 
diction, to  have  a  receiver  appointed  to  settle  the  same,  and  shall 
give  the  sun'iving  partner  or-  partners  ten  days*  notice  of  the 

X.  Car.  600 :  Harrah  v.  Davis,  —  Ind.  '*  Galbraith  v.  Tracy,  153  111.  54,  38 

App.  —  96  X.  E.  41.  ^'-  E.  937,  46  Am.  St.  867,  28  L.  R. 

*Hite   V.    Hite,    1    B.    Mon.    (Ky.)  A.  129n;  Dayton  v.  Bartlett,  38  Ohio 

177.  St.  357. 

^^Vanduzer    v.    McMillan,    11    Ga.  « Burns'  R.  S.  1908,  §  2716. 
299. 


§    464  SUR\-I\TXG    PARTNERS.  793 

time  and  place  of  hearing  such  petition;  and  if,  upon  the  hear- 
ing thereof,  the  judge  of  such  court  shall  be  convinced  that  such 
partnership  business  is  not  being  properly  settled,  or  that  the 
assets  of  such  firm  are  being  wasted,  he  shall  appoint  a  receiver 
as  heretofore  to  settle  the  same/" 

An  unreasonable  dela)-  by  the  sur\-iving  partner  in  the  settle- 
ment of  the  partnership  business,  or  any  unfaithfulness  to  the 
trust  reposed  in  him  will  authorize  the  court,  in  a  proper  case, 
to  appoint  a  receiver.^^ 

After  a  receiver  has  been  appointed  the  propert}-  of  the  part- 
nership is  in  his  hands  subject  to  the  control  of  the  court  ap- 
pointing him.  It  is  in  the  custody  of  the  court  for  the  benefit 
of  all  the  creditors  and  others  interested,  and  no  creditor  has  the 
right  to  have  such  property  levied  upon  and  sold  on  execution 
for  his  benefit. ^- 

Upon  the  appointment  of  a  receiver  he  becomes  at  once  entitled 

to  the  control  and  possession  of  all  the  partnership  assets,  to 

the  exclusion  of  the  sun'iving  members  of  such  partnership.""^ 

It  is  only  by  the  appointment  of  a  receiver  that  the  settlement  of 

partnership  affairs  can  be  taken  out  of  the  hands  of  a  surviving 

partner.^* 

^  Burns'  R.  S.  1908.  §  2717.  A  re-  ing  partner  has  made  a  preference  of 
ceiverappointedforapartnership.be-  partnership  creditors,  and  has  con- 
fore  such  partnership  makes  a  volun-  veyed  the  partnership  assets  m  trust 
tar^-  assignment  for  the  benefit  of  its  for  such  creditor,  a  petition  for  the 
creditors,  has  the  right  to  the  assets  appointment  of  a  receiver  for  such 
of  the  firm  against  the  assignee,  partnership,  which  discloses  such  a 
Xeedham  v.  Wright.  140  Ind.  190,  39  state  of  facts  is  msufficient,  for  if  a 
2^-    £    5JQ  receiver  were  appointed  there  would 


51  CI-; 


Skillen    V.    Jones,    44    Ind.    136;  be  nothing  to  receive  and  the  appoint- 

Story  on  Partnership.  §  347.  ment  would  be  a  useless   ceremony. 

"Knode  v.  Baldridge,  11  Ind.  54.  Havens,  &c.,  Co.  v.  Harris,  140  Ind. 

"  BoUenbacher  v.  First  Nat  Bank,  2>W,  39  N.  E.  49:  Harrah  v.  State,  o^ 

8  Ind    \pp.  12  35  X.  E.  403;  High  on  Ind.  App.  495,  76  X.  E.  443,  11  X.  E. 

Receivers.  §§  538.  541.  747:  Webster  v.  Major,  ^o  Ind.  App. 

"Xeedham    v.    Wright,    140    Ind.  202,  71  X.  E.  176. 
190.  39  X.  E.  510.     Where  a  surviv- 


TITLE  TWO 

WILLS 


CHAPTER  XXIII. 


EXECUTION,  REVOCATION  AND  PROBATE. 


§  465.  The  subject  generally.  §484. 

466.  Who  may  make  a  will. 

467.  Power   of   married   woman  to  485. 

make  a  will. 

468.  Persons  of  unsound  mind.  486. 

469.  Infants  and  aliens.  487. 

470.  Joint  and  mutual  wills.  488. 

471.  Suggestions  for  drawing  wills.  489. 

472.  Objects  of  testator's  bounty.  490. 

473.  Who  may  be  a  beneficiary.  491. 

474.  Bequest  or  devise  to  charitable 

uses.  492. 

475.  Execution    and    attestation    of  493. 

will.  494. 

476.  Nuncupative  wills. 

477.  The  statute  construed.  495. 

478.  Such  wills  by  soldiers  and  sail-  496. 

ors.  497. 

479.  Instruments  of  a  testamentary  498. 

character. 

480.  Revocation  of  wills.  499. 

481.  Revocation  by  birth  of  a  child.  500. 

482.  Effect  of  child's  death.  501. 

483.  When  marriage  a  revocation. 


What  is  not  deemed  a  revoca- 
tion. 

Effect  of  a  partial  divesting  of 
title. 

Republication  of  wills. 

Probate  of  wills. 

Objections  to  probate. 

What  must  be  probated. 

When  probated. 

Custody  and  production  of  the 
will. 

Proof  of  the  will. 

Proof  by  depositions. 

Preservation  and  effect  of 
proof. 

Probating  wills  of  absentees. 

The  effect  of  probate. 

Certificate  of  probate. 

Record  and  probate  of  foreign 
wills. 

Lost  wills,  how  established. 

The  degree  of  proof  required. 

Decree  to  be  recorded. 


§  465.  The  subject  generally. — It  is  not  the  intention  un- 
der Title  Two  to  deal  extensively  or  generally  with  the  subject 
of  wills.     An  effort  at  an  exhaustive  and  comprehensive  treat- 

794 


§  465  EXECUTION,    REVOCATION    AND    PROBATE.  795 

ment  of  the  law  relating  to  wills  would  be  out  of  place  in  work 
of  the  scope  and  character  of  this  one.  The  various  able  text- 
writers  on  this  subject  have  left  very  little  for  a  reader  to  desire. 
The  scope  of  this  and  the  succeeding  chapters  includes  a  review 
of  the  statute  law  of  this  state  upon  the  subjects  considered, 
together  with  the  decisions  of  the  state  courts  upon  the  more 
common  and  familiar  principles  of  law  and  points  of  practice 
arising  under  these  statutes;  relating  chiefly  to  the  execution, 
probate,  revocation,  construction,  and  contest  of  wills,  methods 
of  procedure,  etc.,  touching  only  upon  such  points  as  will  most 
frequently  confront  the  practitioner  in  this  state;  placing  before 
him  both  the  statute  and  case  law  of  Indiana  upon  the  subject  of 
wills  and  their  contest  arranged  systematically. 

The  term  "will,"  as  used  in  this  act,  shall  be  construed  to  mean 
all  wills,  testaments,  codicils,  and  supplemental  wills.^ 

\\"ills  may  be  written  or  unwritten,  an  unwritten  will  being 
known  as  a  nuncupative  will.  But  whether  written  or  unwritten 
all  wills,  to  have  any  force  and  effect,  must  be  proven  and  ad- 
mitted to  probate.  One  author  saying:  "A  will  takes  its  legal 
validity  from  its  probate ;  that  is  the  certification  by  the  court  or 
tribunal  clothed  with  authority  for  such  purpose  that  it  has  been 
executed,  published  and  attested  as  required  by  law,  and  that  the 
testator  was  of  sound  and  disposing  mind.  Without  such  proof 
it  is  not  a  will  in  the  legal  sense. "^ 

The  purpose  of  a  last  will  and  testament  is  to  control  the 
disposition  of  the  testator's  property  after  his  death  in  the  man- 
ner he  may  desire.  A  will  is  ambulatory  in  that  it  does  not  become 
operative  or  vest  any  rights  in  others  until  after  the  death  of  the 
testator  and  may  therefore  be  revoked  or  changed  by  him  at  any 
time.  For  the  power  to  revoke  a  will  is  co-extensive  with  the 
power  to  make  one.  A  revocation  is  usually  accomplished  by  the 
cancellation  or  destruction  of  the  will,  or  one  will  may  be  revoked 
by  another.    It  is  always  the  last  will  which  is  valid.* 

'  Burns'  R.  S.  1908,  §  3169.  '  Kern  v.  Kern,  154  Ind.  29,  55  N.  E. 

^Woerner  Am.  Law  Admin.,  §  214;     1004. 
Ryan  v.  Texas  &c.  R.  Co.,  64  Tex. 
239. 


796  INDIANA    PROBATE    LAW.  §  465. 

The  distinguishing  characteristics  of  a  will  are  the  intention  of 
making-  a  testamentary  disposition  of  property,  or  what  is  called 
the  animus  testandi;  and  second  that  of  revocability.  These  es- 
sentials are  to  be  gathered  from  the  entire  instrument  regardless 
of  whether  it  may  be  called  a  will  or  not.  If  an  instrument  is  so 
executed  that  the  maker  cannot  revoke  it,  it  may  be  good  as  a 
deed  or  contract  but  it  is  not  a  will. 

A  will  may  be  said  to  be  any  instrument,  executed  with  the 
formalities  required  by  law,  whereby  a  person  makes  a  disposi- 
tion of  his  property  to  take  effect  after  his  death.  It  is  of  the 
essence  of  a  testamentary  disposition  of  property  that  it  be  purely 
posthumous  in  operation,  since  during  life  the  intent  of  the  testa- 
tor must  continue  ambulatory.* 

A  codicil  is  a  clause  added  to  a  will  after  its  execution,  the 
purpose  of  which  is  either  to  alter,  enlarge  or  restrain  the  pro- 
visions of  the  will.  It  does  not  supersede  or  revoke  the  will  as 
an  after-made  will  would  do,  but  it  is  a  part  thereof,  to  be  con- 
strued with  it  as  one  entire  instrument.' 

Courts  are  not  at  liberty  in  the  construction  of  wills  to  travel 

*  Heaston  v.  Krieg,  167  Ind.  101,  77  condition   that  the   devisee   shall  also 

N.  E.  805,  119  Am.  St.  475;  McCarty  comply   with   what   may   be   enjoined 

V.  Waterman,  84  Ind.  550;  Robinson  upon  him  by  any  codicil."     Tilden  v. 

V.  Brewster,  140  111.  649,  30  N.  E.  683,  Tilden,   13   Gray    (Mass.)    103.     Sim- 

23  Am.   St.  265;   Cover  v.   Stem,  67  mons  v.  Simmons,  26  Barb.   (N.  Y.) 

Md.  449,  10  Atl.  231,  1  Am.  St.  406.  68,  75.     "Between  a  codicil  and  a  sub- 

'  Lee  V.  Lee,  45  Ind.  App.  645,  91  N.  sequent  will,  there  is  this  difference 
E.  507.  "A  codicil,  duly  executed,  is  of  construction;  a  codicil  is  a  republi- 
an  addition  or  supplement  to  a  will,  cation  and  ratification  of  so  much  of 
and  is  no  revocation  thereof,  except  the  prior  will  as  it  does  not  revoke; 
in  the  precise  degree  in  which  it  is  in-  whereas  a  new  will,  (if  it  provides 
consistent  therewith,  unless  there  be  for  a  full  disposition  of  all  the  testa- 
words  of  revocation.  And  it  is  an  es-  tor's  estate),  though  inconsistent  but 
tablished  prima  facie  rule  of  con-  in  part  with  the  former  will,  and  ab- 
struction,  that  an  additional  legacy,  solutely  agreeing  in  part,  revokes  the 
given  by  a  codicil,  is  attended  with  the  whole  prior  will,  by  substituting  a 
same  incidents  and  qualities  as  the  new  and  last  disposition  for  the  for- 
original  legacy.  Upon  the  same  prin-  mer  one."  Brant  v.  Wilson,  8  Cow. 
cipal,  a  devise  upon  condition  that  the  (N.  Y.)  56;  Larrabee  v.  Larrabee,  28 
devisee  shall  'comply  with  what  is  en-  Vt.  274;  Neff's  Appeal,  48  Pa.  St. 
joined  upon  him  in  the  will'  must  be  501;  Jones  v.  Jones,  2  Dev.  Eq.  (N. 
construed,    prima    facie,    to    be    upon  Car.)  387. 


§  466  EXECUTION,    REVOCATION    AND    PROBATE.  797 

outside  and  seek  evidence  of  the  testator's  intention.  They  are 
confined  to  the  will,  and  cannot  speculate  upon  the  intention  not 
therein  expressed  or  plainly  implied.  The  inquir}%  therefore,  is 
never  what  the  testator  meant  to  express,  but  what  the  words  he 
used  do  express.*^ 

One  of  the  most  important  offices  which  a  codicil  may  perform 
as  part  of  a  pre-existing  will,  is  the  effect  ascribed  to  it  of  con- 
firming or  republishing  such  will.  And  for  the  same  reason  it 
operates  to  establish  a  will  which  would  otherwise  be  void  for 
want  of  compliance  with  the  law  regulating  its  execution  and 
attestation,  because  the  codicil,  speaking  and  operating  from  the 
time  of  its  execution,  brings  the  will  to  it  and  makes  it  a  will 
from  the  date  of  the  codicil.  But  to  have  such  effect  the  codicil 
itself  must  be  duly  executed  and  attested  and  must  refer  to  the 
will  in  such  a  way  as  to  identify  it.  Nor  is  it  essential  that  the 
codicil  be  annexed  to  the  will  or  that  it  be  written  upon  the  same 
paper  as  the  will." 

§  466.  Who  may  make  a  v^rill. — Unless  prohibited  by  law, 
every  person  is  capable  of  making  a  will.  The  statute  provides 
that  "all  persons,  except  infants  and  persons  of  unsound  mind, 
may  devise  by  last  will  and  testament,  any  interest  descendible 
to  their  heirs  which  they  may  have  in  any  lands,  tenements,  and 
hereditaments,  or  in  any  personal  property,  to  any  person  or 
corporation  capable  of  holding  the  same."* 

The  right  of  a  person  to  dispose  of  his  property  by  will  is 
said  to  be,  in  this  state,  an  absolute  and  inherent  one.'' 

« Lee  V.  Lee.  45  Ind.  App.  645,  91  N.  will.     Bundy    v.    McKnight,    48    Ind. 

E.  507.  502 ;  Dyer  v.  Dyer,  87  Ind.  13 ;  Dur- 

'•  Woerner  Am.  Law  Admin.,  §  47.  ham  v.  Smith,  120  Ind.  463,  22  N.  E. 

*  Burns'  R.  S.  1908,  §  3112.     In  or-  ZZ2,;    Burkhart    v.    Gladish,    123    Ind. 

der  to  make  a  will  it  is  only  necessary  ZZl,  24  N.  E.  118. 

that  the  testator  has  mental  capacity  « Addington  v.  Wilson,   5   Ind.   137, 

sufficient  to  know  the  extent  and  value  61  Am.  Dec.  81 :  Xoel  v.  Ewing,  9  Ind. 

of     his    property,    the    number    and  2>7.     Every  man  may  naturally  choose 

names  of  the  persons  who  are  the  na-  the  person  to  whom  he  would  leave 

tural    objects    of    his    bounty,    and    a  his  property  after  his  death,  so  long 

memory  capable  of  retaining  the  facts  as  his  right  is  not  limited  by  some  m- 

necessarv  to  direct  the  making  of  a  dispensable  obligation.     Vattel  116. 


79^  INDIANA    PROBATE    LAW.  §  467 

A  person  who  is  competent  to  make  a  will  has  the  absolute 
right  to  dispose  of  all  of  his  property,  both  real  and  personal, 
over  and  above  that  portion  of  it  required  to  pay  his  debts  and 
expenses,  to  whomsoever  he  pleases.  He  may  entirely  disin- 
herit his  children  if  he  chooses  to  do  so,  and  his  motive  for  so 
doing  cannot  be  called  in  question/" 

The  right  to  make  a  testamentary  disposition  of  property 
is  held  to  be  a  right  common  to  civilized  people  of  all  ages,  and 
while  uniformly  regulated  by  statute,  the  right  is  by  no  means 
created  by  the  statute. ^^ 

This  statute,  too,  only  declares  who  may  make  a  will,  but  does 
not,  in  terms,  deprive  any  one  of  the  right.  The  inference, 
however,  necessarily  follows  that  those  under  the  disabilities 
named  in  the  statute,  are  disqualified  to  make  a  will.^- 

It  is  said,  "No  person  is  capable  of  exercising  testamentary 
power  who  is,  for  any  reason,  incapable  of  exercising  free  will."" 
Grounds  of  incapacity  are  said  to  be,  want  of  sufficient  legal  dis- 
cretion; want  of  liberty  or  freedom  of  will;  incapacity  by  reason 
of  crime. ^* 

The  first  two  grounds  are  applicable  under  our  statute,  but  one 
is  not  deprived  of  the  right  to  make  a  will  because  of  his  con- 
viction for  crime.  By  virtue  of  this  statute  it  is  now  held  that 
all  persons  except  infants  and  persons  of  unsound  mind  are  made 
competent  to  devise  by  last  will  and  testament.  ^^ 

§  467.  Power  of  married  woman  to  make  will. — By  the 
common  law  married  women  could  not  dispose  of  property  by 
will.  This  disability  was  peculiar  to  the  English  law  and  arose 
out  of  the  fiction  that  coverture  merged  the  personal  existence  of 

"Addington  v.  Wilson,  5  Ind.  137,  "Harrison  v.  Bishop,  131  Ind.  161, 

61  Am.  Dec.  81 ;  Dean  v.  Lyon,  8  Ind.  30  N.  E.  1069,  31  Am.  St.  422. 

71.     The  power  of  alienation  of  prop-  '-  Harrison  v.  Bishop,  131  Ind.  161, 

erty    is    a    necessary    incident    to    the  30  N.  E.  1069,  31  Am.  St.  422. 

right  of  property,  and  was  dictated  by  "  Woerner  Am.  Law.  Admin.,  §  18. 

mutual  convenience  and  mutual  wants.  "  Williams  Exrs.  15. 

*     *     *     Grotius  considers  disposition  "  Hibberd  v.  Trask,  160  Ind.  498,  67 

by  will  to  be  one  of  the  natural  rights  N.  E.  179. 
of  alienation.    2  Kent,  p.  326. 


§  467  EXECUTION,    REVOCATION   AND    PROBATE.  799 

the  wife  in  that  of  the  husband.  The  tendency  of  legislation  and 
judicial  construction  in  America,  however,  has  been  away  from 
this  doctrine.  Our  Supreme  Court  was  at  first  disposed  to 
narrow  the  construction  of  the  statute,  and  in  construing  this 
section  it,  in  one  case,  intimates  that  a  general  statute  giving 
power  to  make  wills  will  not  be  construed  to  embrace  persons 
under  common-law  disabilities,  but  did  not  decide  whether  or  not, 
under  this  statute,  a  married  woman  might  make  a  will,  hold- 
ing that  this  point  was  not  before  them.^*^  In  a  later  case," 
however,  this  question  was  brought  before  the  court  directly  for 
decision,  and  it  there  held  that  the  phrase  "all  persons"  means 
what  it  says  and  that  no  one  is  excluded  by  the  statute  save  those 
falling  within  the  exception  "infants  and  persons  of  unsound 
mind."  But  the  legislature  of  1859  put  an  end  to  controversy 
by  assuming  to  place  a  construction  upon  this  section,  saying 
it  was  intended  to  empower,  and  does  empower,  married  women, 
as  well  as  all  other  persons,  except  infants  and  persons  of  un- 
sound mind,  to  devise  and  bequeath,  by  last  will  and  testament, 
their  real  and  personal  estate  to  any  person  or  corporation  capable 
of  holding  the  same ;"  and  such  was  declared  to  be  the  true  intent 
and  meaning  of  this  section  of  the  statute;''  following  it  by  a 
section  legalizing  all  wills  previously  made  since  such  section  had 
taken  effect." 

This  act  of  the  legislature  trenched  largely  upon  the  province 
of  the  judiciar\'  of  the  state  and  was  of  questionable  authority, 
to  say  the  least.  The  Supreme  Court  has,  however,  adopted  this 
construction  of  the  statute,  and  it  is  now  the  fixed  rule  of  law 
in  this  state  that  married  women  may  make  wills. 

"  Reese  v.  Cochran,  10  Ind.  195.  by  the  same  law  makers,  authorizing 

^'  Noble  V.  Enos,   19  Ind.  72.     The  married  women  to  hold  property,  both 

court  says :     "The  persons  that  may  real  and  personal  separate  from  their 

devise  are  named,  that  is,  'all  persons.'  husbands,  and  to  sue  alone  in  matters 

The  statute  does  not  stop  at  declaring  concerning  the  same,  the  question  nat- 

that  all  persons  shall  have  that  power,  urally    arises,   whether   the   term   'all 

but  proceeds  to  enumerate  the  excep-  persons'  will  include  them." 

tions,  to  wit :  'infants,  and  persons  of  '*  Burns'  R.  S.  1908,  §  3113. 

unsound   mind.'    Now,   as   there   are  ^^  Burns' R.  S.  1908,  §  3114. 
other  provisions  in  the  code,  enacted 


8oo 


INDIANA    PROBATE    LAW 


§468 


The  consent  of  the  husband  is  not  necessary  to  her  exercise 
of  such  power.""  His  consent  to  her  making  a  will  does  not, 
however,  deprive  him  of  such  interest  in  her  property  as  is  given 
him  by  the  statute. ^^ 

The  will  of  an  unmarried  woman  is  re\'oked  by  her  subsequent 
marriage."' 

8  468.  Persons  of  unsound  mind. — Persons  of  unsound 
mind  are  by  this  statute  rendered  incompetent  to  make  a  will. 
The  phrase,  "of  unsound  mind"  includes  idiots,  non  compotes, 
lunatics,  and  distracted  persons,"'"*  and  has  been  held  to  include 
every  species  of  mental  unsoundness.'-*  Adhering  to  this  con- 
struction, the  court  in  another  case  says:  "Partial  insanity  is 
necessarily  included  as  one  of  the  forms  of  mental  unsoundness. 
It  is  often  difficult  to  decide  when  eccentricity,  or  a  merely 
capricious  imagination  terminates,  and  when  actual  mental  de- 
rangement begins;  but  when  a  person  has  become  the  victim 
of.  a  mental  derangement,  amounting  to  insanity  in  any  form,  we 
are  of  the  opinion  that,  under  our  statute,  he  is  incompetent  to 
make  a  will.""^ 


-"  Noble  V.  Enos,  19  Ind.  72. 

"  O'Hara  v.  Stone,  48  Ind.  417. 

-  Vail  V.  Lindsay,  67  Ind.  528. 

^  Burns'  R.  S.  1908,  §  1356. 

^■'Willett  V.  Porter,  42  Ind.  250; 
Burkhart  v.  Gladish,  123  Ind.  2Z7,  24 
X.  E.  118. 

"^  Eggers  V.  Eggers,  57  Ind.  461. 
The  law  requires  one  who  would  ex- 
ecute a  valid  will  to  possess  mind 
enough  to  know  the  extent  and  value 
of  his  property,  the  number  and  names 
of  the  persons  who  are  the  natural 
objects  of  his  bounty,  their  deserts 
with  reference  to  .their  conduct  and 
treatment  toward  him,  their  capacity 
and  necessity,  and  that  he  shall  have 
sufficient  active  memory  to  retain  all 
these  facts  in  his  mind  long  enough 
to  have  his  will  prepared  and  exe- 
cuted.   A  person  possessed  of   delu- 


sions, whose  mind  is  impaired  to  that 
degree  which  the  law  upon  the  sub- 
ject of  wills  recognizes  as  amounting 
to  insanity  or  vmsoundness  of  mind, 
is  incapable  of  making  a  valid  will. 
Burkliart  v.  Gladish,  123  Ind.  ZZ7, 
24  N.  E.  118.  Where,  in  an  action  re- 
sisting the  probate  of  a  will  because 
of  alleged  unsoundness  of  the  testa- 
tor's mind,  and  fraud  practiced  upon 
him  when  making  the  will,  it  is  found 
that  the  testator  when  making  the 
will  was  of  unsound  mind,  and  not 
overcome  by  persuasions,  importuni- 
ties, coercion,  force  or  threats,  and 
that  he  was  laboring  under  no  delu- 
sion as  to  the  amount  of  his  property, 
a  further  finding  that  he  was  laboring 
under  a  delusion  that  certain  of  his 
children,  contestors,  had  treated  him 
badly,  will  not  justify  a  refusal  to  ad- 


§  468  EXECUTION,    REVOCATION    AND    PROBATE.  80I 

Loss  of  memory  is  considered  a  species  of  mental  unsoundness, 
and  will  render  a  person  incompetent  to  make  a  will.''' 

The  law,  however,  recognizes  degrees  of  mental  unsoundness, 
and  not  every  degree  is  sufficient  to  destroy  testamentary  ca- 
pacity. A  person  may  be  possessed  of  the  requisite  capacity  to 
make  a  will  and  yet  have  some  defect  of  mind.''^  And  it  is  held 
that  "one's  mental  powers  may  be  so  far  impaired  as  to  inca- 
pacitate him  for  the  active  conduct  of  his  estate,  justifying  the 
appointment  of  a  guardian  for  that  purpose,  and  yet  he  may 
have  such  capacity  as  will  enable  him  to  direct  a  just  and  fair 
disposition  of  his  property  by  will.""® 

A  person  may  not  be  of  sound  mind,  but  yet  be  of  a  disposing 
mind  and  capable  of  making  a  will.  The  expression  "sound 
mind"  does  not  mean  a  perfectly  balanced  mind.  The  question 
of  soundness  of  mind  is  one  of  degree.-''  It  is  said  .that  a  man  of 
sound  mind  and  disposing  memory  is  one  who  has  a  full  and 
intelligent  knowledge  of  the  act  he  is  engaged  in,  a  full  knowl- 
edge of  the  property  he  possesses,  an  intelligent  perception  and 
understanding  of  the  disposition  he  desires  to  make  of  it  and  of 
the  persons  and  objects  he  desires  shall  be  the  recipients  of  his 
bounty.     It  is  not  necessaiy  that  he  should  collect  these  all  in 

mit  the  will  to  probate.     Hite  v.  Sims,  nieces  and  nephews  than  to  his  sis- 

94  Ind.  333.  ters,  and  disinherited  an  old  and  in- 

^Lowder  v.   Lowder,  58  Ind.   538;  digent  sister  in  part,  does  not  furnish 

Burkhart  v.  Gladish,  123  Ind.  337,  24  any  evidence  of  insanity.     Conway  v. 

N.  E.   118;  Lamb  v.  Lamb,  105  Ind.  Vizzard,  122  Ind.  266,  23  N.  E.  771. 

456,  5  N.  E.  171.  If  a  testator  has  made  a  rational  dis- 

"  Lowder  v.   Lowder,  58  Ind.   538 ;  position  of  his  property,  no  presump- 

Durham  v.  Smith,  120  Ind.  463,  22  N.  tion  of  unsoundness  of  mind  can  be 

E.  333 ;  Burkhart  v.  Gladish,  123  Ind.  drawn  from  the  fact  that  the  distri- 

337,  24  N.  E.  118.  bution  is  unequal.     Inequality  or  in- 

^  Harrison  v.  Bishop,  131  Ind.  161,  justice  in  the  disposition  of  his  estate 

30  N.  E.  1069,  31  Am.  St.  422.  Where  is  a  circumstance  which  may  be  con- 

the  jury  is  instructed  that  unnatural  sidered,  with  other  circumstances,  on 

provisions  in  a  will  may  be  considered  the  subject  of  the  testator's  mental  ca- 

in  connection  with  other  evidence  as  pacity.     Lamb  v.  Lamb,  105  Ind.  456. 

bearing  on  the  question  of  the  insan-  5  N.  E.  171 ;  Roberts  v.  Abbott,  127 

ity  of  the  testator,  it  is  not  error  to  Ind.  83,  26  N.  E.  565. 
instruct  the  jury  that  the  fact  alone        "*  Freeman  v.  Easly,  117  111.  317,  7 

that   the   testator   gave   more   to   his  N.  E.  656;  Taylor  v.  Taylor,  174  Ind. 

670,  93  N.  E.  9. 
51 — Pro.  Law. 


802  INDIANA  PROBATE  LAW.  §  468 

one  review.  If  he  understands  in  detail  what  he  is  about  and 
chooses  with  understanding  and  reason  between  one  disposition 
and  another,  it  is  sufficient  for  making  a  will.^° 

No  matter  what  may  have  been  the  condition  of  the  testator's 
mind  at  some  other  time,  the  inquiry  is  always  directed  to  his 
mental  condition  at  the  time  the  will  was  made. 

The  adjudication  of  mental  unsoundness  in  proceedings  for 
the  appointment  of  a  guardian  for  a  person,  conclusively  estab- 
lishes the  fact  of  his  inability  to  manage  his  estate,  but  it  does 
not  necessarily  establish  the  existence  of  such  unsoundness  of 
mind  as  would  incapacitate  him  from  making  a  valid  will.  It 
furnishes  prima  facie  evidence  of  such  want  of  mental  power, 
however,  and  the  burden  of  establishing  the  validity  of  a  will 
made  by  one  under  guardianship  as  a  person  of  unsound  mind, 
is,  when  such  validity  is  properly  attacked,  upon  those  who  seek 
to  uphold  the  will.^^ 

And  in  such  case  it  is  incumbent  upon  those  upon  whom 
the  burden  of  proof  rests  to  show  by  clear,  explicit  and  satis- 
factory evidence  that  at  the  time  of  the  execution  of  a  will  by 
a  person  so  under  guardianship,  the  maker  had  the  requisite 
degree  of  mental  capacity  to  make  a  valid  will.^^ 

"*  Wilson   V.    Mitchell,   101    Pa.    St.  22,  Zl  N.  W.  236.     It  is  not  error,  in 

495;   Miller  v.  Oestrich,   157   Pa.   St.  a  will  contest  on  the  ground  of  the 

264,  27  Atl.  742;  Thorne  v.   Cosand,  testator's    unsoundness    of    mind,    to 

160  Ind.  566,  67  N.  E.  257;  Rarick  v.  charge  the  jury  that  an  inquest  find- 

Ulmer,   144  Ind.  25,  42  N.   E.   1099 ;  ing  the  testator  of  unsound  mind  and 

Roller  V.  Kling,  150  Ind.  159,  49  N.  E.  placing      him      under      guardianship, 

948;  Wait  v.  Westfall,  161   Ind.  648,  which  is  in  force  at  the  time  the  will 

68  N.  E.  271.  is  executed,  "is  prima  facie  evidence 

^^  Stevens  v.  Stevens,  127  Ind.  560,  of  insanity  and  incapacity  on  the  part 

26  N.   E.   1078;   Harrison  v.   Bishop,  of  the  testator  to  execute  the  will  in 

131  Ind.  161,  30  N.  E.  1069,  31  Am.  question,"  and  that  "it  would  there- 

St.  422 ;  Redden  v.  Baker,  86  Ind.  191 ;  fore  be  incumbent  on  those  who  seek 

Stone  v.  Damon,  12  Mass.  504 ;  Tay-  to  establish  said  will  to  show  by  clear, 

lor  V.  Taylor,  174  Ind.  670,  93  N.  E.  9.  explicit  and  satisfactory  evidence  that 

'^  Stevens  v.   Stevens,  127  Ind.  560,  the  testator  had  at  the  time  he  exe- 

26  N.   E.   1078;    Harrison  v.   Bishop,  cuted  said  will  such  mental  capacity 

131  Ind.   161,  30  N.  E.  1069,  31  Am.  and  freedom  of  will  and  action  as  are 

St.    422;    Breed    v.    Pratt,    18    Pick,  required    to     render    a    will     legally 

(Mass.)  115;  Will  of  Slinger,  72  Wis.  valid."    The  italicized  words   do  not 


468 


EXECUTION,    REVOCATION    AND    PROBATE. 


803 


Unsoundness  of  mind  in  connection  with  the  making  of  a 
will  does  not  mean  the  same  as  insanity. ^^ 

It  is  only  necessary  that  the  testator  have  mental  capacity 
sufficient  to  know  the  extent  and  value  of  his  property,  the 
number  and  names  of  the  persons  who  are  the  natural  objects 
of  his  bounty,  a  sufficient  memory  capable  of  retaining  the  facts 
necessary  to  direct  the  making  of  a  will.^* 

But  when  it  is  once  shown  that  unsoundness  of  mind  exists, 
such  condition  is  presumed  to  continue.^" 

The  record  of  discharge  from  a  guardianship  of  insanity  as 
cured  is  only  prima  facie  evidence  of  such  cure.^''  The  expres- 
sion "of  unsound  mind"  as  used  in  our  statute  means  such  a 


render  such  instruction  erroneous. 
Stevens  v.  Stevens,  127  Ind.  560,  26  N. 
E.  1078. 

''Wallis  V.  Luhring,  134  Ind.  447, 
34  N.  E.  231.  An  instruction  to  the 
jury  that  a  person  of  unsound  mind, 
all  mental  defects  being  included  in 
the  word,  "unsound,"  is  incapable  of 
making  a  valid  will,  whether  or  not 
such  vmsoundness  affected  the  dispo- 
sition of  the  property,  is  erroneous. 
Durham  v.  Smith,  120  Ind.  463,  22  N. 
E.  333. 

'*  Bundy  v.  McKnight,  48  Ind.  502 ; 
Dyer  v.  Dyer,  87  Ind.  13 ;  Durham  v. 
Smith,  120  Ind.  463,  22  N.  E.  333; 
Burkhart  v.  Gladish,  123  Ind.  337,  24 
N.  E.  118.  Where  the  evidence  in  an 
action  to  set  aside  a  will  tends  to 
prove  that  the  testator  was  addicted 
to  the  excessive  use  of  intoxicating 
drink;  that  he  was  insanely  jealous 
of  his  wife,  a  woman  of  good  reputa- 
tion for  chastity,  that  he  persistently 
denied  the  paternity  of  two  of  his 
children,  and  charged  that  one  of 
them  was  the  child  of  his  son-in-law; 
that  he  charged  his  wife  with  being 
too  intimate  with  all  of  his  sons-in- 
law,  as  well  as  with  other  men,  and 
frequently  beat  and  abused  her,  on  ac- 
count of  her  supposed  infidelity;  that 


finally  he  shot  her  to  death  and  then 
committed  suicide,  leaving  a  written 
statement  proving  that  he  took  her 
life  on  account  of  her  supposed  infi- 
delity, there  being  no  foundation  for 
his  charges  against  her,  the  testator's 
unsoundness  of  mind  at  the  time  of 
his  death  is  sufficiently  shown.  Burk- 
hart V.  Gladish,  123  Ind.  337,  24  N.  E. 
118;  Crawfordsville  Trust  Co.  v. 
Ramsey,  —  Ind.  -*,  98  N.  E.  177. 

^^Kenworthy  v.  Williams,  5  Ind. 
375;  Rush  v.  Megee,  36  Ind.  69;  Wal- 
lis  V.  Luhring,  134  Ind.  447,  34  N.  E. 
231.  To  enable  the  jury  to  determine 
as  to  the  condition  of  the  testator's 
mind  at  the  date  of  the  will,  it  is 
proper  to  show  its  condition  at  any 
time  prior  thereto.  Staser  v.  Hogan, 
120  Ind.  207,  21  N.  E.  911,  22  N.  E. 
990.  In  an  action  to  test  the  validity 
of  a  will,  where  one  of  the  grounds 
of  contest  is  unsoundness  of  mind  of 
the  testator  at  the  time  the  will  was 
executed,  conditions  prior  or  subse- 
quent to  the  execution  of  a  will  are 
proper  evidence  in  determining  the 
condition  of  the  mind  at  the  time  of 
executing  the  will.  Pence  v.  Waugh, 
135  Ind.  143,  34  N.  E.  860. 

""Page  on  Wills  479;  Taylor  v. 
Taylor,  174  Ind.  670,  93  N.  E.  9. 


8o4 


INDIANA    PROBATE    LAW. 


§468 


degree  of  unsoundness  of  mind  as  incapacitates  one  from  making 
a  will  according  to  the  standard  fixed  by  the  adjudicated  cases  for 
testamentary  capacity."' 

In  every  instance,  however,  except  where  the  testator,  at  the 
time  of  making  his  will,  is  under  guardianship  as  a  person  of 
unsound  mind,  the  person  is  by  the  law  presumed  to  be  sane.*"* 
But  a  condition  of  unsoundness  of  mind  in  a  testator  once  estab- 
lished at  a  time  prior  to  the  making  of  the  will  is  presumed  to 
continue,  and  the  burden  of  rebutting  such  presumption  rests 
with  those  attempting  to  uphold  the  will.^" 


'''  Blough  V.  Parry,  144  Ind.  463,  40 
N.  E.  70,  43  N.  E.  560. 

="  Roller  V.  Kling,  150  Ind.  159,  49 
N.  E.  948;  Taylor  v.  Creswell,  45  Md. 
422 ;  Blough  v.  Parry,  144  Ind.  463,  40 
N.  E.  70,  43  N.  E.  560.  Cartwright  v. 
Cartwright,  1  Phillim.  90,  100,  in 
which  Sir  Sm.  Wynne  states  the  law 
as  follows:  "If  you  can  establish 
that  the  party  afflicted  habitually  by  a 
malady  of  the  mind  has  intermissions, 
and  if  there  was  an  intermission  of 
the  disorder  at  the  time  of  the  act, 
that  being  proved  is  sufficient,  and  the 
general  habitual  insanity  will  not  af- 
fect it;  but  the  effect  of  it  is  this,  it 
inverts  the  order  of  proof  and  of  pre- 
sumption, for,  until  proof  of  habitual 
insanity  is  made,  the  presumption  is 
that  the  party  agent  like  all  human 
creatures  was  rational;  but  where  an 
habitual  insanity  in  the  mind  of  the 
person  who  does  the  act  is  established, 
there  the  party  who  would  take  ad- 
vantage of  the  fact  of  an  interval  of 
reason  must  prove  it."  See  Williams 
Extrs.  29  et  seq.,  and  numerous 
English  cases  cited  there.  1  Jarm.  on 
Wills,  37. 

''Wallis  V.  Luhring,  134  Ind.  447, 
34  N.  E.  231;  Raymond  v.  Wa- 
then,  142  Ind.  367,  41  N.  E. 
815;  Roller  v.  Kling,  150  Ind.  159, 
49  N.  E.  948.     The  possibility  of  lucid 


intervals  is  in  modern  time  denied  by 
some  eminent  alienists.  But  whether 
the  term  "lucid  interval"  is  accurate- 
ly or  improperly  used,  in  the  scientific 
sense,  is  not  important  for  legal 
purposes.  The  law  recognizes  cer- 
tain conditions  of  insane  persons 
as  enabling  them  to  act  intelli- 
gently and  exercise  free  will; 
which  is  not  denied  by  psycholog- 
ical physicians,  but  accounted  for  by 
them  as  a  temporary  mask  of  the  de- 
lirium, or  one  of  the  phases  of  the 
disease  conditioned  by  the  periodicity 
of  its  nature,  a  fleeting  remission  of 
the  symptoms  rather  than  a  change  of 
the  pathological  condition.  See  Whart. 
&  Stille  Med.  Jurisp.,  §  61  et  seq.,  744 
et  seq.  And  it  is  not  sufficient  to 
prove  sanity  before  and  after  the  day 
on  which  the  will  was  made,  but  the 
lucid  interval  must  be  proved  at  the 
very  time.  Harden  v.  Hays,  9  Pa.  St. 
151 ;  Aubert  v.  Aubert,  6  La.  Ann. 
104;  Saxon  v.  Whitaker,  30  Ala.  237; 
Von  De  Veld  v.  Judy  (Mo.),  44  S.  W. 
1117;  Taylor  v.  Taylor,  174  Ind.  670, 
93  N.  E.  9.  Complete  restoration  need 
not,  however,  be  shown  in  proving  the 
lucid  interval;  it  is  sufficient  to  prove 
a  restoration  of  the  faculties  of  the 
mind  sufficient  to  enable  the  testator 
soundly  to  judge  of  the  act.     Boyd  v. 


§  469  EXECUTION,    REVOCATION    AND    PROBATE.  805 

§  469.  Infants  and  aliens. — Male  infants  of  the  age  of  four- 
teen and  females  at  the  age  of  twelve  years,  could  at  common 
law  make  a  valid  will  disposing  of  their  personal  property.*" 
But  no  valid  devise  of  real  estate  could  be  made  under  the  age 
at  which  a  valid  conveyance  of  the  same  could  be  executed.*^ 
And  where  an  infant  who  was  old  enough  to  will  his  person- 
alty willed  it  to  one  who  would  have  been  his  heir,  and  at  the 
same  time  devised  his  real  estate  to  a  stranger,  the  heir  would 
also  take  the  land.*^ 

Infancy  in  this  state  continues  to  the  age  of  twenty-one  years, 
and  by  the  foregoing  statute  is  made  a  disability  which  prevents 
one  laboring  thereunder  from  making  a  valid  will. 

The  incapacity  of  infants  is  said  to  arise  necessarily  out  of 
their  want  of  discretion;  and  that  since  it  is  impracticable  to  as- 
certain the  precise  moment  when  an  infant's  mind  is  sufficiently 
matured  to  act  rationally  upon  the  ordinary  affairs  of  life,  the 
law  fixes  a  definite  age  at  which  discretion  will  be  presumed. 
The  limitation  is,  therefore,  an  external  one,  based  not  so  much 
upon  mental  incapacity,  but  arising  out  of  a  legal  disability.*^ 

In  this  state  natural  persons  who  are  aliens,  whether  they 
reside  in  the  United  States  or  any  foreign  country,  may  acquire, 
hold  and  enjoy  real  estate,  and  may  convey,  devise,  mortgage  or 
otherwise  incumber  the  same,  in  like  manner  and  with  the  same 
effect  as  citizens  of  this  state.** 

Alienism,  under  certain  restrictions,  does  not  bar  one  from 
taking  property  in  this  state  by  will.*^ 

In  the  absence  of  any  statute  authorizing  an  alien  to  dispose 
of  property  by  will,  it  is  perhaps  doubtful  if  he  would  possess 
such  right,  except  it  might  be  under  the  same  conditions  and 
restrictions  as  those  under  which  he  is  permitted  to  take  property 
by  will. 

Eby,  8  Watts  (Pa.)  66;  see  Busw.  on        ''Kearney  v.  Macomb,  16  N.  J.  Eq. 
Insanity,    §    189,    and    English    cases     189;  Tongue  v.  Nutwell,  17  Md.  212, 
cited,  i.  e.,  Creagh  v.  Blood,  2  Jones     79  Am.  Dec.  649. 
&  La.  T.  509.  *'  Woerner  Am.  Law  Admin.,  §  20. 

«  Co.  Litt.,  89  b. ;  Davis  v.  Baugh,  1        "  Burns'  R.  S.  1908,  §  4010. 
Sneed  (Tenn.)  477.  « Burns'  R.  S.  1908,.  §§  3940,  3941, 

"4  Kent.  Com.  405.  3943,  3944. 


8o6  INDIANA    PROBATE    LAW.  §  47O 

In  one  case  it  was  decided  that  an  Indian  who  was  a  bona  fide 
resident  of  the  United  States,  although  not  a  citizen,  could 
transfer  property  by  devise/"* 

§  470.  Joint  and  mutual  wills. — From  the  ambulatory 
quality  of  wills  it  follows  that  a  testator  cannot  by  his  will 
deprive  himself  by  any  covenant  or  stipulations  therein  of  his 
power  to  revoke  such  will.  For  this  reason  the  rule  seems  once  to 
have  been  that  a  testamentary  disposition  of  property  by  joint 
or  mutual  vvills  was  ineffectual  to  convey  title  to  the  property. 
But  the  weight  of  modern  authority  is  now  that  such  wills,  un- 
revoked in  the  lifetime  of  the  makers,  are  valid  as  to  the  separate 
property  of  each  maker,  at  his  death,  or  will  take  effect  upon 
joint  property  at  the  death  of  all.  Quoting  from  a  leading  work, 
"Two  or  more  persons  may  make  a  joint  will,  which,  if  properly 
executed  by  each,  is,  so  far  as  his  own  property  is  concerned, 
as  much  his  will,  and  is  as  well  entitled  to  probate  upon  the 
death  of  each  as  if  he  had  made  a  separate  will.  But  a  joint 
will  made  by  two  persons,  to  take  eff'ect  after  the  death  of  both 
will  not  be  admitted  to  probate  during  the  life  of  either."*' 

The  will  of  a  husband  and  wife,  though  joint  in  form,  is  not 
a  joint  will,  if  the  property  devised  belongs  to  the  husband  or 
wife  only,  and  where  such  will  is  contingent,  it  is  void  if  the 
contingency  does  not  happen.  But  where  the  husband  and  wife 
had  joined  to  devise,  and  had  executed  it  by  joint  will,  neither 
of  them  can  revoke  it  by  making  a  separate  will.** 

§471.  Suggestions  for  drawing  wills. — In  drawing  wills, 
the  following  practical  suggestions  are  made : 

The  draftsman  should,  instead  of  adopting  the  mere  routine 
plan  of  writing  the  exact  words  of  the  testator,  rather  make 
the  effort  to  get  at  his  real  purpose,  as  much  litigation  is  thereby 
saved. 

^  Parent  v.  Walmsly,  20  Ind.  82.  both,    leaving   the   will   unrevoked,   it 

"  1  Jarman  on  Wills,  31 ;  Williams  can  be  admitted  to  probate. 

Extrs.,  p.    11;   Black  v.   Richards,  95  "•"  Rogers,    Appellant,    11    Me.    303; 

Ind.    184.     Owners    in    common    may  Allen  v.  Allen,  28  Kan.  18;  Breathitt 

dispose  of  their  common  property  by  v.  Whittaker,  8  B.  Mon.  (Ky.)  530. 

a  joint  will,  and,  upon  the  death  of 


§  471  EXECUTION,    REVOCATION    AND    PROBATE.  807 

Two  leading  points  are  essential  in  framing  the  wills  of  others. 
First.  The  legal  adviser  should  fully  possess  himself  of  the 
real  purpose  of  the  testator.  Second.  He  should  become  reason- 
ably certain,  before  the  will  is  finally  authenticated,  that  the 
'language  he  adopts  as  expressing  the  intention  of  the  testator 
is  fully  understood  by  the  testator.  Hence,  it  is  of  great  conse- 
quence that  he  adopt  the  plainest  and  least  involved  mode  of 
composition,  and  also  that  he  avoid  unusual  technical  expressions, 
so  that  the  testator  may  fully  understand  the  language  put  in 
his  mouth. 

Mr.  Jarman  suggests  the  following  considerations  : 

1.  That  in  a  devise  of  real  estate,  there  be  accurate  descrip- 
tion, and  that  where  the  same  estate  is  described  by  boundaries, 
and  the  name  of  the  occupant,  care  be  taken  that  both  precisely 
concur. 

2.  That  where  an  estate  is  devised  to  a  class  not  certain  to 
be  in  existence  at  the  death  of  the  testator,  provision  be  made 
for  the  disposition  of  the  intermediate  profits  of  the  estate. 

3.  That  where  any  particular  funds  are  set  apart  for  the  pay- 
ment of  debts,  it  should  be  clearly  defined  whether  it  is  the  in- 
tention of  the  testator  to  thereby  exonerate  the  general  person- 
alty from  being  primarily  liable  to  that  charge. 

Instructions  for  wills  should  be  taken  from  the  testator  him- 
self, rather  than  from  third  persons,  particularly  where  such 
third  persons  are  interested. 

In  the  preparation  of  a  will  no  particular  form  or  phraseology 
is  necessary.  It  is  sufficient  however  irregular  in  form  or  in- 
artificial in  expression  if  it  discloses  the  intention  of  the  testator 
to  make  a  disposition  of  his  property  to  take  effect  after  his 
death. *^  The  technical  mandates  of  the  statute,  however,  as  to 
its  execution,  signing  and  attestation,  must  be  complied  with,  for 
the  courts  cannot  alone  consider  the  intention  of  the  testator,  but 
in  these  respects  must  also  consider  the  intention  of  the  legisla- 

**  Allen  V.  McFarland,  150  111.  455,  279;  Alston  v.  Davis,  118  N.  Car.  202, 
yi  N.  E.  1006;  Mitchell  v.  Donohue,  24  S.  E.  15;  Fosselman  v.  Elder,  98 
100  Cal.  202,  34  Pac.  614,  38  Am.  St.     Pa.  St.  159. 


8o8  INDIANA    PROBATE    LAW.  §  472 

ture.^''  It  is  said  is  one  case  that  "the  legislature  has  power  to 
prescribe  the  formalities  to  be  observed  in  the  execution  of  a  will, 
and  by  sO'  doing  does  not  interfere  with  the  rights  of  an  individual 
to  dispose  of  his  property  as  he  sees  fit."°^ 

A  will  duly  executed,  with  knowledge  of  its  contents  on  the 
part  of  the  testator,  is  valid,  though  never  read  by  him,  or  even 
if  it  is  written  in  a  language  unknown  to  him/^ 

A  will  may  be  written  or  printed,  or  partly  written  and  partly 
printed,  or  engraved  or  lithographed ;  and  blank  spaces  left  in 
a  will  do  not  necessarily  invalidate  it.^^  A  will  may  also  be 
written  on  several  disconnected  pieces  of  paper  and  if  taken 
together  they  make  sense  and  as  an  entirety  constitute  a  con- 
nected instrument  the  will  is  valid.  Or  some  disconnected  docu- 
ment or  writing  may,  by  reference,  be  made  a  part  of  a  will. 
Such  a  paper  to  be  incorporated  in  the  will  must  be  in  existence 
at  the  time  of  the  execution  of  the  will,  and  must  be  referred  to 
in  the  will  in  such  a  way  as  to  be  reasonably  identified  by  such 
reference,  and  so  as  to  show  the  testator's  intention  to  make  it 
a  part  of  his  will.^* 

§  472.  Objects  of  testator's  bounty. — In  relation  to  the  ob- 
jects of  the  testator's  bounty  circumspection  is  necessary.  On 
this  subject  Mr.  Jarman  says,  the  obvious  inquiries  to  be  made 
of  a  testator,  of  whose  bounty  children  are  to  be  the  objects, 
are  at  what  ages  their  shares  are  to  vest,  whether  the  income,  or 
part  of  it,  is  to  be  applied  for  maintenance  until  the  period  for 
vesting,  and  if  not  all  applied,  what  is  to  become  of  the  excess 
and  whether  if  any  child  die  in  the  testator's  lifetime  or  subse- 
quently, before  the  vesting  age,  leaving  children,  such  children 
are  to  be  substituted  for  the  deceased  parents.  If  the  vesting 
of  the  shares  be  postponed  till  the  death  of  a  prior  tenant  for 
life;  or  other  possibly  remote  period,  the  necessity  for  providing 

'"In    re    Walker's    Estate,    110    Cal.         ^'^  In    re    McCabe's    Estate,    68    Cal. 
387,  42  Pac.  815,  52  Am.  St.  104,  30  L.     519,  9  Pac.  554. 

R.  A.  460 ;  In  re  Whitney's  Will,  153         ''  Walter,  Will  of,  64  Wis.  487,  25 
N.  Y.  259,  47  N.  E.  272,  60  Am.  St.     N.  W.  538,  54  Am.  Rep.  640. 
616.  "  Jarman  on  Wills,  §  18. 

^Page  on  Wills,  §§  161,  162. 


§  47-  EXECUTION,    REVOCATION    AND    PROBATE.  809 

for  such  events  is  of  course  more  urgent  in  that  case,  and  it 
should  be  ascertained  whether  if  the  objects  die  leaving  grand- 
children or  more  remote  issue,  but  no  children,  such  issue  are  to 
stand  in  the  place  of  their  parents. 

If  a  gift  be  made  to  a  plurality  of  persons,  it  should  be  in- 
quired whether  they  are  to  take  as  joint  tenants,  or  tenants  in 
common,  or,  in  other  words,  whether  with  or  without  survivor- 
ship; though  it  is  better,  when  survivorship  is  intended,  to  make 
the  devisees  tenants  in  common,  with  an  express  limitation  to 
the  survivors,  than  to  create  a  joint  tenancy  which  may  be 
severed. 

In  all  cases  of  limitation  to  survivors,  it  should  be  most  clearly 
and  explicitly  stated  to  what  period  survivorship  is  to  be  re- 
ferred; that  is,  whether  the  property  is  to  go  to  the  persons 
who  are  survivors  at  the  death  of  the  testator,  or  at  the  period 
of  distribution. 

It  may  be  observed  that  where  interests  not  in  possession  are 
created,  which  are  intended  to  be  contingent  until  a  given  event 
or  period,  this  should  be  explicitly  stated,  as  a  contrary  construc- 
tion is  generally  the  result  of  an  absence  of  expression.  Ex- 
plicitness,  generally,  on  the  subject  of  vesting  cannot  be  too 
strongly  urged  on  the  attention  of  the  framers  of  wills. 

Where  a  testator  proposes  to  recommend  any  person  to  the 
favorable  regard  of  another,  whom  he  has  made  the  object  of 
his  bounty,  it  should  be  ascertained  whether  he  intends  to  im- 
pose a  legal  obligation  on  the  devisee  or  legatee  in  favor  of 
such  person,  or  to  express  a  wish  without  conferring  a  right. 
In  the  former  case  a  clear  and  definite  trust  should  be  created ; 
and  in  the  latter  case,  words  negativing  such  a  construction 
of  the  testator's  expressions  should  be  used.  Equivocal  language, 
in  these  cases,  has  given  rise  to  much  litigation. 

§  473.  Who  may  be  a  beneficiary. — As  wall  be  seen,  the 
statute  provides  that  "any  person  or  corporation  capable  of  hold- 
ing the  same"  may  accept  property  as  a  beneficiary  under  any 
will.  All  that  is  required  is  that  the  object  of  the  testator's  bounty 


8io 


INDIANA    PROBATE    LAW. 


§473 


should  be  designated  with  sufficient  certainty,  and  parol  evidence 
will  be  admitted  to  identify  the  legatee  or  devisee. ^^ 

A  devise  to  a  county  by  name  is  good  and  sufficiently  cer- 
tain ;  a  county  having  the  legal  capacity  to  take  a  devise  of  prop- 
erty as  a  permanent  fund  in  trust  for  the  benefit  of  a  certain  class 
named  by  the  testator,^''  and  it  makes  no  difference  whether  the 
devise  is  to  the  county  by  name,  or  to  board  of  commissioners  of 
such  county." 

Municipal  corporations,  being  quasi  corporations  with  power 
to  take  and  hold  real  estate  for  some  purposes,  may  take  under 
a  devise.^*  A  municipal  corporation  may  also  be  a  trustee  under  a 
will  when  the  trust  created  is  germane  to  the  purposes  for  which 


'"'^  Chappell  V.  Missionary  Society,  3 
Ind.  App.  356,  29  N.  E.  924,  50  Am. 
St.  276n  ;  Skinner  v.  Harrison  Tp.,  116 
Ind.  139,  18  N.  E.  529,  2  L.  R.  A.  137; 
Grimes  v.  Harmon,  35  Ind.  198,  9  Am. 
Rep.  690;  De  Bruler  v.  Ferguson,  54 
Ind.  549.  In  a  note  to  Chambers  v. 
Watson,  46  Am.  Rep.  77,  the  law  is 
stated  thus :  "A  misnomer  or  misde- 
scription of  a  legatee  or  devisee, 
whether  a  natural  person  or  a  cor- 
poration, will  not  invalidate  the  pro- 
vision or  defeat  the  intention  of  the 
testator,  if,  either  from  the  will  itself 
or  evidence  dehors  the  will,  the  ob- 
ject of  the  testator's  bounty  can  be 
ascertained.  No  principle  is  better 
settled  than  that  parol  evidence  is  ad- 
missible to  remove  latent  ambiguities, 
and  when  there  is  no  person  or  cor- 
poration in  existence  precisely  an- 
swering to  the  name  or  description  in 
the  will,  parol  evidence  may  be  given 
to  ascertain  who  were  intended  by  the 
testator.  A  corporation  may  be  des- 
ignated by  its  corporate  name,  by  the 
name  by  which  it  is  usually  or  popu- 
larly called  and  known,  by  a  name  by 
which  it  was  known  and  called  by  the 
testator,  or  by  any  name  or  descrip- 
tion by  which  it  can  be  distinguished 


from  every  other  corporation;  and 
when  any  but  the  corporate  name  is 
used,  the  circumstances  to  enable  the 
court  to  apply  the  name  or  descrip- 
tion to  a  particular  corporation  and 
identify  it  as  the  body  intended,  and 
to  distinguish  it  from  all  others  and 
bring  it  within  the  terms  of  the  will, 
may  in  all  cases  be  proved  by  parol." 

'"Craig  V.  Secrist,  54  Ind.  419;  La- 
grange County  V.  Rogers,  55  Ind.  297 ; 
Rush  County  v.  Dinwiddie,  139  Ind. 
128,  Z7  N.  E.  795. 

"Craig  v.  Secrist,  54  Ind.  419. 
Where  a  testator  devises  property  "to 
Harrison  township,"  and  it  is  made  to 
appear  hy  evidence  that  there  are 
many  townships  of  that  name  in  the 
state,  it  is  competent,  in  order  to  re- 
move the  obscurity  in  the  testator's 
intention  caused  by  the  extraneous 
circumstances,  to  show  by  extrinsic 
evidence  that  the  testator  resided  in 
Harrison  township  in  a  certain 
county,  and  that  he  sustained  a  rela- 
tion to  that  township  different  from 
all  others  of  like  name.  Skinner  v. 
Harrison  Tp.,  116  Ind.  139,  18  N.  E. 
529,  2  L.  R.  A.  137. 

^'  Hayward  v.  Davidson,  41  Ind. 
212;    Erskine   v.    Whitehead,   84   Ind. 


§473  EXECUTION,    REVOCATION    AND    PROBATE.  8ll 

the  corporation  was  created,  and  when  the  administration  of  the 
trust,  and  the  HabiHties  it  imposes,  are  not  foreign  to  the  objects 
for  which  the  corporation  was  instituted.^'-* 

At  common  law  a  corporation  had  power  to  take  personal 
property  by  bequest,  but  a  devise  of  real  estate  to  it  directly  was 
invalid. *'''  No  restriction  is  placed  by  our  statutes  upon  a  corpora- 
tion's power  to  take  personal  property  by  will,  and  the  only  quali- 
fication of  its  power  to  take  land  by  devise  is  that  it  shall  be  such 
a  corporation  as  is  authorized  by  its  charter  or  the  law  of  its 
creation  to  take  and  hold  land.  With  reference  to  their  powers  to 
take  and  hold  land,  corporations  have  been  classified  as  follows : 
I.  Those  who  are  forbidden  by  the  law  of  their  creation  to  ac- 
quire and  hold  real  estate,  a  devise  to  a  corporation  of  this  class 
would  pass  no  title.  2.  Those  whose  charter,  or  the  law  of  whose 
creation  is  silent  as  to  whether  or  not  they  may  acquire  and  hold 
real  estate.  As  a  rule  corporations  of  this  class  do  not  possess 
such  power,  but  if  the  object  or  purpose  of  their  creation  cannot 
be  accomplished,  without  their  acquiring  and  holding  real  estate, 
the  power  to  do  so  will  necessarily  be  implied.  A  devise  to  such 
corporation  might,  under  certain  circumstances,  be  valid.  It  is 
with  reference  to  corporations  of  this  class  that  the  most  difficul- 
ties and  doubts  arise.  3.  Those  who  are  in  some  cases  and  for 
some  purposes  authorized  to  take  and  hold  title  to  real  estate. 
Having  power  to  take  title,  a  devise  to  such  corporation  would 
be  valid." 

An  alien  may  take  and  hold  title  to  land  by  devise,  but  if  he 
is  not  a  bona  fide  resident  of  this  state,  and  has  declared  his 
intention  in  the  proper  form  to  become  a  citizen  of  the  United 

357 ;  Common  Council  v.  State,  5  Ind.  529,  2  L.  R.  A.  137 ;  Craig  v.  Secrist, 

334;  City  of  Richmond  v.  Davis,  103  54     Ind.     419;     Carder     v.     Fayette 

Ind.  449,  3  N.  E.  130 ;  Skinner  v.  Har-  County,  16  Ohio  St.  353 ;  Philadelphia 

rison  Tp.,  116  Ind.  139,  18  N.  E.  529,  v.  Fox,  64  Pa.  St.  169;  Chambers  v. 

2  L.  R.  A.  137.  St.  Louis,  29  Mo.  543;  First  Congre- 

="  LaGrange    County   v.    Rogers,   55  gational  Soc.  v.  Atwater,  23  Conn.  34. 

Ind.  297;  Rush  County  v.  Dinwiddie,  '' 1  Mor.  Priv.  Corp.,  §  331. 

139  Ind.  128,  37  N.  E.  795;  Skinner  v.  "  Hayward  v.  Davidson,  41  Ind.  212. 
Harrison  Tp.,  116  Ind.  139,  18  N.  E. 


8l2  INDIANA  PROBATE  LAW.  §  474 

States,  his  riglit  of  ownership  of  such  land  is  Hmited  to  five 
years.  ^^ 

A  devise  or  legacy  in  contravention  of  law  or  public  policy 
or  for  the  furtherance  of  some  illegal  purpose  is  void."^ 

There  is  no  statute  in  this  state  requiring  parents  to  make  pro- 
vision for  their  children  in  the  will.  The  ancestor  may  provide 
by  will  for  each  of  his  descendants,  or  for  some  to  the  exclusion 
of  others,  or  he  may  make  no  provision  for  any  of  them.  It  is 
said :  "It  is  a  privilege  of  an  ancestor  to  make  such  inequality  of 
division  among  his  children  as  he  may  desire,  and  if  he  so  desires, 
he  may  leave  a  child  without  an  interest  in  his  estate."" 

§  474.  Bequest  or  devise  to  charitable  uses. — Testamen- 
tary gifts  to  charitable  uses  are  distinguishable  from  other  testa- 
mentar}^  dispositions  in  several  particulars,  owing  to  the  high 
favor  with  which  the  law  regards  them,  and  which  demands  their 
most  liberal  construction  with  the  view  of  accomplishing  the  in- 
tent and  purpose  of  the  donor,  and  this  to  an  extent  which  will 
uphold  and  carr\'  into  effect  trusts  to  charitable  uses  which  cannot 
be  upheld  in  ordinary  cases.*'' 

Charitable  or  public  trusts,  unlike  private  trusts,  are  not  af- 
fected by  the  rule  against  perpetuities ;  but  such  a  trust  may  be 
perpetual  in  its  duration.^® 

The  English  statute  of  charitable  uses,  known  as  the  statute  43, 
Elizabeth,  chapter  14,  is  not  in  force  in  this  state,  but  without 
reference  to  this  statute,  courts  of  equity  here  have  original  and 
inherent  jurisdiction  over  charities,  and  apply  to  them  the  rules 
of  equity  and  such  other  rules  as  are  applicable  to  charitable  uses 
as  courts  of  equity  may  exercise  under  the  constitution  and  laws 
of  the  state." 

"Burns'  R.   S.   1908,  §§  3940,  3941,  10  Allen   (Mass.)   1;  Jones  v.  Haber- 

3943,  3944.  sham,   107  U.   S.  174.  27  L.  ed.  401  ; 

''  Schouler  Extrs.,  §  463.  Citv  of  Richmond  v.'  Davis.   103  Ind. 

"Gulp  V.  Gulp,  142  Ind.  159;  41  X.  449,  3  N.  E.  130. 

^■J^^-  ""  Grimes  v.  Harmon,  35  Ind.  198.  9 

''  Woerner  Am.  Law  Admin.,  §  429.  Am.  Rep.  690 ;  Erskine  v.  Whitehead, 

'"  Quid  V.  Washington  Hospital,  95  84  Ind.  357.     A  bequest  of  a  fund  to 

U.   S.  303,  24  L.   ed.  450;   Estate  of  trustees  to  form  a  county  benevolent 

Hmckley,  58  Gal.  457;  Odell  v.  Odell,  fund,  the  trustees  being  empowered, 


474 


EXECUTION,    REVOCATION    AND    PROBATE. 


813 


Neither  does  the  English  doctrine  of  cy  pres,  in  so  far  as  it  is 
a  prerogative  power,  exist  here.  As  our  courts  possess  only  ju- 
dicial power,  they  cannot  undertake  to  uphold  or  enforce  any 
charity  or  gift  to  a  charitable  use  which  requires  an  exercise  of 
any  other  than  their  judicial  powers.  So  if  a  testator  ineffectu- 
ally dedicates  his  property  to  charity,  or  dedicates  it  in  such  a 
manner  that  the  devise  is  void,  the  state  has  no  prerogative  right 
to  interfere  and  dispose  of  the  property,  as  in  England  the  king 
would  be  pennitted  to  do  under  the  cypres  power.®* 

If  the  charity  does  not  fix  itself  upon  any  particular  object  but 
is  general  and  indefinite,  and  no  plan  or  scheme  is  prescribed  in 
the  will,  and  no  discretion  is  lodged  by  the  testator  in  certain  and 
ascertainable  individuals,  it  does  not  admit  of  judicial  adminis- 
tration, and  the  property  devised  lapses  to  the  next  of  kin.*^'' 


upon  such  plan  as  they  may  choose, 
to  apply  the  annual  income  to  poor 
families,  widows  and  orphans,  new- 
comers in  distress,  or  persons  in  such 
county  suflrering  from  want  of  cloth- 
ing, food  or  fuel,  especially  in  the 
winter,  but  not  to  drunkards,  but  to 
their  suffering  families,  if  worthy, 
not  to  companies  or  corporations  un- 
less formed  for  the  relief  of  the  poor; 
not  to  churches,  but  to  those  in  dis- 
tress, and  especially  to  suffering  fami- 
lies from  whatsoever  county,  etc.,  is 
a  good  gift  to  charit3^  A  bequest  to 
the  trustees  of  a  certain  organized 
church  having  trustees,  and  to  their 
successors,  of  one  thousand  dollars, 
to  be  put  at  interest,  the  interest  to  be 
appropriated  annually  to  the  suppres- 
sion of  the  manufacture,  sale  and  use 
of  intoxicating  liquors,  the  will  pro- 
viding that  if  said  trustees  should  fail 
for  two  successive  years  to  use  the 
interest  as  directed,  then  the  whole 
bequest  to  go  to  the  heirs  of  the  testa- 
tor, was  valid.  Haines  v.  Allen,  78 
Ind.  100,  41  Am.  Rep.  555. 
^  Lepage  v.  McNamara,  5  Iowa  124 ; 


Grimes  v.  Harmon,  35  Ind.  198,  9  Am. 
Rep.  690;  Erskine  v.  Whitehead,  84 
Ind.  357;  Attorney  General  v.  Utica, 
&c.  Co.,  2  Johns.  Ch.  (X.  Y.)  371. 

•=•  Grimes  v.  Harmon,  35  Ind.  198,  9 
Am.  Rep.  690.  The  mere  making  of 
an  ecclesiastical  organization  a  trus- 
tee for  an  ordinary  eleemosynary 
charity,  does  not  of  itself  give  a  sec- 
tarian character  to  the  charity.  An 
eleemosynary  charity  is,  in  the  gen- 
eral scope  of  its  benevolence,  essen- 
tially unsectarian,  and  can  only  be 
made  sectarian  by  having  such  limita- 
tions and  restrictions  placed  upon  it 
by  the  donor  as  make  it  so.  White 
Lick  V.  White  Lick,  89  Ind.  136. 
In  order  that  there  may  be  a  good 
trust  for  a  charitable  use,  there 
must  always  be  some  public  benefit 
open  to  an  indefinite  number,  the  par- 
ticular beneficiaries  to  be  selected  by 
the  trustee.  The  seventh  and  eleventh 
propositions  enunciated  in  Grimes  v. 
Harmon,  35  Ind.  198,  9  Am.  Rep.  690, 
criticised  and  disapproved  as  being 
inconsistent  with  the  tenth  and  twelfth 
propositions    therein,    which    are    ap- 


8i4 


INDIANA    PROBATE    LAW. 


§474 


The  American  doctrine  in  relation  to  charities  does  not  adopt 
the  EngHsh  doctrine  of  cy  pres  only  in  a  modified  and  restricted 
form.  It  is,  however,  established  by  the  weight  of  authority  that 
there  is  in  our  courts  of  equity  a  cy  pres  power  which  is  judicial 
in  its  origin  and  character. ^"^  It  is  not  the  exercise  of  the  preroga- 
tive, but  the  application  by  such  courts  of  a  liberal  rule  of  judicial 
construction.  As  is  said :  "The  difference  between  the  crown  and 
the  court  is  this:  the  court  is  governed  by  known  judicial  rules  of 
interpretation;  the  crown  is  governed  by  its  own  good  will  and 
pleasure  in  deducing  or  imputing  such  intentions  as  it  sees  fit."" 

There  is  a  wide  distinction  between  a  gift  to  charity  and  a  gift 
to  a  trustee  to  be  by  him  applied  to  charity. 

In  the  first  case  the  court  has  only  to  give  the  fund  to  the 
charity  designated  in  the  will,  which  is  a  ministerial  or  preroga- 
tive act,  while  in  the  second  case  it  takes  jurisdiction  of  the  trus- 


proved.  Erskine  v.  Whitehead,  84 
Ind.  357. 

™  Grimes  v.  Harmon,  35  Ind.  198.  9 
Am.  Rep.  690;  Erskine  v.  Whitehead, 
84  Ind.  357 ;  2  Perry  on  Trusts,  pp. 
297,  395. 

"2  Perry  on  Trusts,  §  727.  Gifts 
made  to  particular  charitable  pur- 
poses, or  to  charity  generally,  will  be 
upheld  and  administered,  if  there  be 
a  trustee  with  power  to  make  them 
definite  and  certain.  Erskine  v.  White- 
head, 84  Ind.  357.  In  Moore  v. 
Moore,  4  Dana  (Ky.)  354,  29  Am. 
Dec.  417,  the  doctrine  of  cypres  and 
its  limitations  is  stated  as  follows : 
"The  cypres  doctrine  of  England  is 
not,  or  should  not  be,  a  judicial  doc- 
trine, except  in  one  kind  of  case;  and 
that  is,  where  there  is  an  available 
charity  to  an  identified  or  ascer- 
tainable object,  and  a  particular 
mode,  inadequate,  illegal,  or  inappro- 
priate, or  which  happens  to  fail,  has 
been   prescribed      ^n    such   a   case,    a 


court  of  equity  may  substitute  or 
sanction  any  other  mode  that  may  be 
lawful  and  suitable,  and  will  effectu- 
ate the  declared  intention  of  the 
donor,  and  not  arbitrarily  and  in  the 
dark,  presuming  on  his  motives  or 
wishes,  declare  an  object  for  him.  A 
court  may  act  judicially  as  long  as  it 
effectuates  the  lawful  intention  of  the 
donor.  But  it  does  not  act  judicially 
when  it  applies  his  bounty  to  a  spe- 
cific object  of  charity,  selected  by  it- 
self, merely  because  he  had  dedicated 
it  to  charity  generally,  or  to  a  speci- 
fied purpose  which  cannot  be  effectu- 
ated; for  the  court  cannot  know  or 
decide  that  he  would  have  been  will- 
ing that  it  should  be  applied  to  the  ob- 
ject to  which  the  judge,  in  the  plenti- 
tude  of  his  unregulated  discretion 
and  peculiar  benevolence,  has  seen  fit 
to  decree  its  appropriation,  whereby 
he,  and  not  the  donor,  in  effect  and  at 
last,  creates  the  charity." 


474 


EXECUTION,    REVOCATION    AND    PROBATE. 


815 


tee  to  see  that  he  does  not  commit  a  breach  of  his  trust,  and  to  see 
that  the  funds  are  apphed  to  charitable  uses.'" 

In  order  that  there  may  be  a  good  trust  for  a  charitable  use 
there  must  always  be  some  public  benefit  open  to  an  indefinite 
number,  the  particular  beneficiaries  to  be  selected  by  a  trustee 
who  is  clearly  and  certainly  designated,  or  who  may  be  clearly  as- 
certained.'^^ 

The  will  need  not  point  out  any  plan  by  which  the  objects  of 
the  bequest  shall  be  accomplished.  It  is  sufficient  if  it  appoints 
trustees,  with  power  to  appropriate  the  money  in  aid  of  the  ob- 
ject of  charity  named  in  the  will,  in  such  manner  as  they  shall 
see  fit.''* 

The  first  characteristic  of  a  charity  is  that  it  is  for  the  general 


■-2  Perry  on  Trusts,  §  719.  Courts 
of  equity  have  original  and  inherent 
jurisdiction  over  charities  and  apply 
to  them  the  rules  of  equity  and  such 
ether  rules  applicable  to  charitable 
uses  as  courts  of  equity  may  exercise 
under  the  constitution  and  laws  of  the 
state,  without  reference  to  the  statute 
of  43  Elizabeth.  The  English  statute 
of  charitable  uses  is  not  enforced  in 
Indiana,  nor  the  cypres  power  so  far 
as  it  is  prerogative.  The  courts  of  this 
state  have  judicial  power  only,  and  do 
not  undertake  to  uphold  or  to  enforce 
any  charity  or  gift  to  a  charitable  use 
which  requires  the  exercise  of  prerog- 
ative power ;  but  there  is  a  cypres 
power  which  is  judicial  in  origin 
and  character,  and  as  such  is  exer- 
cised by  the  courts.  In  effect,  it  is  a 
liberal  rule  of  construction.  Erskine 
v.  Whitehead.  84  Ind.  357. 

''  Erskine  v.  Whitehead,  84  Ind.  357; 
(Disapproving  on  this  point,  Grimes 
v.  Harmon,  35  Ind.  198)  ;  2  Perry  on 
Trusts.  §  710;  Ex  parte  Lindley,  32 
Ind.  367;  Craig  v.  Secrist,  54  Ind.  419; 
Haines  v.  Allen,  78  Ind.  100,  41  Am. 


Rep.  555 ;  De  ^ruler  v.  Ferguson,  54 
Ind.  549;  Rush  County  v.  Dinwiddle, 
139  Ind.  128,  2,7  X.  E.  795. 

•*  Haines  v.  Allen,  78  Ind.  100,  41 
Am.  Rep.  555;  Skinner  v.  Harrison 
Tp.,  116  Ind.  139,  18  N.  E.  529,  2  L. 
R.  A.  137 ;  Beekman  v.  Bonsor,  23  N. 
Y.  298,  80  Am.  Dec.  269;  Witman  v. 
Lex,  17  S.  &  R.  (Pa.)  88,  17  Am.  Dec. 
644.  In  Domestic  &c.  Missionary 
Society's  Appeal,  30  Pa.  St.  425,  it  is 
said :  "The  general  rule  may  be 
stated  thus :  In  the  case  of  a  will 
making  a  charitable  bequest,  it  is  im- 
material how  vague,  indefinite,  and 
uncertain  the  object  of  the  testator's 
bounty  may  be,  provided  there  is  a 
power  vested  in  some  one  over  its  ap- 
plication to  those  objects."  But  a  will 
may  be  so  drawn  as  to  refuse  all  dis- 
cretion to  the  trustees,  in  which  case, 
if  the  charity  be  too  vague  otherwise, 
it  cannot  be  saved  by  a  presumed  in- 
tention to  vest  a  power  of  selection. 
Fairfield  v.  Lawson,  50  Conn.  501,  47 
Am.  Rep.  669;  Grimes  v.  Harmon,  35 
Ind.  198,  9  Am.  Rep.  690. 


8l6  INDIANA    PROBATE   LAW.  §  475 

benefit  and  not  for  the  use  of  a  particular  individual  or  for  par- 
ticular individuals."^ 

The  following  is  accepted  as  the  best  legal  definition  of  a 
charity:  "A  gift  to  be  applied  consistently  with  existing  laws, 
for  the  benefit  of  an  indefinite  number  of  persons,  either  by  bring- 
ing their  minds  or  hearts  under  the  influence  of  education  or  re- 
ligion, or  by  relieving  their  bodies  from  disease,  suffering  or  con- 
straint, by  assisting  them  to  establish  themselves  in  life,  or  by 
erecting  or  maintaining  public  buildings  or  works,  or  otherwise 
lessening  the  burdens  of  government.  It  is  immaterial  whether 
the  purpose  is  called  charitable  in  the  gift  itself,  if  it  is  so  de- 
scribed as  to  show  that  it  is  charitable  in  its  motive."'" 

§  475.  Execution  and  attestation  of  will. — The  statute  pro- 
vides that:  "No  will  except  a  nuncupative  will  shall  affect  any 
estate,  unless  it  be  in  writing,  signed  by  the  testator,  or  by  some 
one  in  his  presence  with  his  consent,  and  attested  and  subscribed 
in  his  presence  by  two  or  more  competent  witnesses;  and  if  the 
witnesses  are  competent  at  the  time  of  attesting,  their  subsequent 
incompetency  shall  not  prevent  the  probate  thereof."" 

It  is  necessary  to  the  validity  of  a  will  that  it  shall  be  attested 
and  subscribed  in  the  presence  of  the  testator  by  at  least  two 
competent  witnesses.  It  is  not  operative  as  a  will  for  any  purpose 
until  the  signature  of  the  testator  is  affixed  to  it.  It  is  this  final 
act  of  execution  the  witnesses  are  required  to  attest.  They  are 
then  required  to  subscribe  their  names  to  it  as  witnesses  of  the 
fact.  To  attest  is  one  thing,  to  subscribe  is  another ;  and  the  wit- 
nesses' signatures  must  be  attached  to  the  instrument  in  the  pres- 
ence of  the  testator.  It  is  not  necessary  that  the  testator  should 
sign  the  will  in  the  presence  of  the  subscribing  witnesses,  though 
if  this  is  not  done  he  should  acknowledge  such  signature  in  their 

'=  Wright  V.   Linn,   9   Pa.    St.   433;        "Burns'   R.    S.    1908,   §   3132.     The 

Kent  V.  Dunham,  142  Jklass.  216,  7  N.  statute  does  not  require  that  the  wit- 

E.  730,  56  Am.  Rep.  667;  Trustees  of  nesses  to  the  execution  of  a  will  shall 

Union  &c.  Church  v.  Wilkinson,  36  X.  attest  it  at  the  testator's  request,  and 

J.  Eq.  141.  such  request  is  not  necessary.     Dyer 

"•  Jackson     v.     Phillips,     14     Allen  v.  Dyer,  87  Ind.  13. 
(Mass.)  539;  2  Perry  on  Trusts,  §  697. 


§475  EXECUTION,    REVOCATION    AND    PROBATE.  817 

presence.'^  Nor  is  it  necessary  that  the  testator  should  actually 
see  the  attesting  witnesses  subscribe  their  names  to  the  instru- 
ment; if  he  is  in  such  a  situation  that  he  might  see  them  do  so  if 
he  choose,  it  will  be  presumed  that  he  did  see  them/** 

Nor  is  it  necessary  to  the  due  execution  of  a  will  that  the  tes- 
tator state  to,  or  in  any  manner  indicate  to,  the  witnesses  upon 
whom  he  calls  to  attest  such  will,  that  the  instrument  or  docu- 
ment signed  by  him  is  his  last  will  and  testament;-"  but  it  is  a 
legal  requisite  of  such  attestation  that  the  witnesses  know  that 
the  paper  they  sign  is  the  same  one  signed  by  the  testator.^^ 

But  the  testator's  name  should  be  signed  to  the  will  before  the 
witnesses  attach  their  signatures/^ 

If,  after  the  will  has  been  signed  and  attested,  an  additional 
clause  is,  by  direction  of  the  testator,  inserted  in  the  presence  of 
the  witnesses,  such  clause  becomes  a  part  of  the  will.^^ 

The  testator  may  sign  the  will  by  a  mark  and  it  will  be  suffi- 
cient notwithstanding  he  was  able  to  write,  and  though  his  name 
does  not  appear  on  the  face  of  the  will,  or  some  name  other  than 
his  appears  thereon.®*  But  the  mark,  whatever  it  be,  must  be 
made  with  the  intent  to  execute  the  will  by  such  mark.®"  And 
where  the  place  for  the  signature  is  not  fixed  by  statute  signing 

"  Wright  V.  Wright,  5  Ind.  389 ;  state  it  is  not  necessary  that  the  sub- 
Reed  V.  Watson,  27  Ind.  443 ;  McEl-  scribing  witnesses  to  a  will  shall  attest 
fresh  V.  Guard,  32  Ind.  408;  Potts  v.  it  at  the  same  time  and  in  presence  of 
Felton,  70  Ind.  166;  Moore  v.  Steph-  each  other.  Johnson  v.  Johnson,  106 
ens,  97  Ind.  271 ;  Patterson  v.  Ran-  Ind.  475,  7  N.  E.  201,  55  Am.  Rep.  762. 
som,  55  Ind.  402 ;  1  Redfield  on  W^ills,  ^=  Reed  v.  Watson,  27  Ind.  443.  The 
247.  competency  of  the  attesting  witnesses 

■'McElfresh  v.  Guard,  32  Ind.  408;  to  a  will  is  presumed  until  the  con- 
Turner  V.  Cook,  36  Ind.  129.  trary  is  shown.     Herbert  v.   Berrier, 

'"  Brown  v.  ^IcAlister,  34  Ind.  375 ;  81  Ind.  1. 

Turner  v.  Cook,  36  Ind.  129 ;  1  Red-  ''  Wright  v.  Wright,  5  Ind.  389. 

field  on  Wills,  223.  ^  Cleveland  v.  Spilman,  25  Ind.  95 ; 

="  Turner  v.  Cook,  36  Ind.  129.    The  Rook  v.  Wilson,  142  Ind.  24,  41  N.  E. 

attestation  of  a  will  thus,  "signed  and  311,  51  Am.  St.  163;  In  re  Guilfoyle, 

sealed  in  the  presence  of,"  with  the  96  Cal.  598,  31  Pac.  553,  22  L.  R.  A. 

signatures   of   two  witnesses,  is   suf-  370n. 

ficient   in   form.     Herbert  v.  Berrier,  ""  Plate's  Estate,  148  Pa.   St.  55,  23 

81  Ind.  1 ;  Hallowell  v.  Hallowell,  88  Atl.  1038.  23  Am.  St.  805. 
Ind.  251.     Under  the  statutes  of  this 

52— Pro.  L.\w. 


8l8  INDIANA    PROBATE    LAW.  §  475 

below  the  attestation  clause,  or  before  the  date,  or  after  a  blank 
space  does  not  invalidate  a  will.*"^ 

The  will  must  be  attested  by  two  competent  witnesses,  by  which 
is  meant  they  must  be  competent  persons  to  testify  in  court,  and 
not  disqualified  by  interest,  relationship  or  mental  incapacity. 
And  if  competent  at  the  time  he  attested  the  will,  although  he 
afterwards  became  incompetent  the  validity  of  the  will  is  not 
affected  thereby.^^  One  named  as  executor  in  a  will,  if  not  a  bene- 
ficiary therein,  is  a  competent  witness.^** 

The  interest  which  disqualifies  a  witness  is  a  beneficial  one,  and 
in  one  case  the  court  held  that  where  the  husband  was  a  bene- 
ficiary under  the  will  that  the  wife  was  not  competent  as  a  witness 
thereto.'^"  But  in  another  case  it  declined  to  say  whether,  where 
the  wife  was  a  beneficiaiy,  the  husband  was  a  competent  witness 
or  not."** 

While  it  is  not  necessary  to  the  validity  of  a  will  that  the  sub- 
scribing witnesses  should  know  that  the  instrument  they  attest 
is  a  will;  yet,  in  the  absence  of  proof  to  the  contrary,  they  will 
be  presumed  to  have  had  such  knowledge  when  they  attested  it. 
The  witness  must  be  understood  to  attest  not  merely  the  act  of 
signing,  but  also  the  mental  capacity  of  the  testator  to  sign. 
While  a  subscribing  witness  may  be  heard  to  impeach  the  will  yet 
if  he  assumes  such  an  attitude  he  does  so  at  the  peril  of  his  repu- 

**  Younger  v.   Dufifie,  94  N.  Y.  535,  isdictions  that  in  such  case  the  legacy 

46  Am.  Rep.    156;   Flood  v.    Pragoff,  to  the  wife  of  the  attesting  witness  is 

79  K}^  607 ;  Gilman  v.  Gilman,  1  Redf.  void,  but  such  witness  is  competent ; 

(N.  Y.)  354.  while    in    other    jurisdictions    it    has 

"  Wisehart   v.    Applegate,    172    Ind.  been   held   that   an   attesting  witness, 

313,  88  N.  E.  501.  who  is  the  husband  or  wife  of  the  leg- 

**  Wisehart   v.    Applegate,    172    Ind.  atee,  is  absolutely  incompetent  to  tes- 

313,  88  N.  E.  501 ;  Hiatt  v.  McColley,  tify  as  a  witness,  and  the  will  is  void. 

171  Ind.  91,  85  N.  E.  772.  1  Underbill,  Wills,  §  206.    We  are  not 

*  Belledin   v.    Gooley,    157    Ind.    49,  required  to  decide  and  do  not  decide 

60  N.  E.  706.  in  this  case  whether  said  Jeffers  was 

•  "^  Wisehart   v.    Applegate,    172    Ind.  a  competent  witness  to  said  will,  be- 

313,  88  N.  E.  501.     "In  this  case  the  cause,  as  we  have  already  shown,  two 

wife  of  the  attesting  witness  Jeffers  of  said  attesting  witnesses,  Kimberlin 

is  not  the  only  beneficiary  under  said  and  Brooks,  were  competent  witnesses 

will,  but  there  are  nine  other  benefi-  when  they  attested  said  will." 
ciaries.     It  has  been  held  in  some  jur- 


475 


EXECUTION,    REVOCATION    AND    PROBATE. 


819 


tation  for  candor  and  veracity."  One  should  only  subscribe  as 
witness  when  he  can  testify  without  reserve  in  favor  of  the  will 
and  its  proper  execution,  and  the  true  interest  of  every  rational 
testator  requires  that  witnesses  be  procured  who  will  stand  reso- 
lutely by  the  transaction  against  all  opposition  to  the  will."^ 

In  reading  this  section  of  the  statute  it  will  be  noticed  that  it 
does  not  require  that  the  witnesses  shall  attest  and  subscribe  the 
will  at  the  request  of  the  testator.*'^ 


""■  Stevens  v.  Leonard,  154  Ind.  67, 
56  X.  E.  27,  77  Am.  St.  446n.  In 
Scribner  v.  Crane,  2  Paige  (N.  Y.) 
147,  Chancellor  Walworth  said :  "No 
person  is  justified  in  putting  his  name 
as  a  subscribing  witness  to  a  will  un- 
less he  knows  from  the  testator  him- 
self that  he  understands  what  he  is 
doing.  The  witness  should  also  be 
satisfied,  from  his  own  knowledge  of 
the  state  of  the  testator's  mental  ca- 
pacity, that  he  is  of  sound  and  dispos- 
ing mind  and  memory.  By  placing 
his  name  to  the  instrument,  the  wit- 
ness, in  efifect,  certifies  to  his  knowl- 
edge of  the  mental  capacity  of  the 
testator;  and  that  the  will  was  exe- 
cuted by  him  freely  and  understand- 
ingly,  with  a  full  knowledge  of  its 
contents.  Such  is  the  legal  effect  of 
the  signature  of  the  witness  when  he 
is  dead,  or  is  out  of  the  jurisdiction 
of  the  court."  "It  seems  to  be  sup- 
posed," says  Judge  Redfield,  "that 
they"  (the  subscribing  witnesses  to  a 
will)  "are  only  witnesses  to  the  act 
of  signing.  But  when  it  is  considered 
that  the  witnesses  to  a  will  must  cer- 
tify to  the  capacity  of  the  testator,  as 
well  as  to  the  act  of  execution,  the 
transaction  begins  to  assume  a  some- 
what different  aspect.  One  who  puts 
his  name  as  a  witness  to  the  execu- 
tion of  a  will,  while  he  was  conscious 
the  testator  was  not  in  the  possession 
of  his  mental  faculties,  places  himself 


very  much  in  the  same  attitude  as  if  he 
had  subscribed,  as  witness,  to  a  will 
which  he  knew  to  be  a  forgery,  which 
every  honorable  man  could  only  re- 
gard as  becoming  accessory  to  the 
crime  by  which  the  will  was  fabri- 
cated; so  that  it  is  not  improbable 
that  the  want  of  proper  appreciation 
of  the  discredit  resulting  from  the  act 
of  becoming  a  witness  to  the  execu- 
tion of  a  will,  by  one  confessedly  in- 
competent to  the  proper  understand- 
ing of  the  instrument,  may,  and  prob- 
ably does,  result  chiefly,  with  us,  from 
the  general  misapprehension  of  the 
law  upon  the  subject,  rather  than 
from  any  settled  disposition  to  disre- 
gard its  dictates  if  correctly  under- 
stood." 1  Redfield  on  Wills  (note), 
p.  96. 

'•'=Schouler  on  Wills,  §  181;  Pence 
V.  Waugh,  135  Ind.  143,  34  N.  E.  860. 
A  writer  of  great  authority  says: 
"The  signature  of  an  attesting  wit- 
ness, when  proved,  is  evidence  of 
everything  upon  the  face  of  the  in- 
strument, for  it  is  to  be  presumed  that 
the  witness  would  not  have  subscribed 
his  name  in  attestation  of  that  which 
did  not  take  place;  and  where  there 
are  several  attesting  witnesses,  all  of 
whom  are  accounted  for,  proof  of  the 
handwriting  of  any  one  is  sufficient 
without  proving  that  of  the  rest." 
Starkie  on  Ev.  (10th  Am.  ed.),  p.  519. 

°'Bundy  v.  McKnight,  48  Ind.  502; 


820  INDIANA  PROBATE  LAW.  §  475 

It  is  no  valid  objection  to  the  execution  of  a  will  that  the  tes- 
tator's signature  was  affixed  thereto  at  his  direction  by  some  other 
person.  The  testator's  name  may  even  be  written  by  one  of  the 
subscribing  witnesses  at  such  testator's  request.®* 

No  precise  form  of  attestation  is  required;  any  form  will  be 
sufficient  which  shows  that  the  testator's  signature  was  affixed 
or  by  him  acknowledged  in  the  presence  of  the  witnesses. ^^  There 
are  numerous  cases  to  be  found  which  hold  that  no  attestation 
clause  is  necessary.®*^ 

The  signatures  of  the  witnesses  constitute  a  sufficient  attesta- 
tion. The  validity  of  the  execution  of  the  will  depends  not  on 
the  attestation  clause,  but  on  the  conformity  of  such  execution 
to  the  requirements  of  the  statute  and  the  testimony  of  the  sub- 
scribing witnesses.®^ 

It  is  not  necessary  that  the  witnesses  who  attest  and  subscribe 
their  names  to  a  will  should  do  so  at  the  same  time,  nor  at  the 
same  place,  nor  in  the  presence  of  each  other.  It  is  sufficient  if 
each  witness  attest  and  subscribe  his  name  in  the  presence  of  the 
testator.  ^'^ 

If  a  will  has  been  properly  signed  by  the  testator  and  duly  at- 
tested and  subscribed  by  at  least  two  competent  witnesses,  it  is  not 
necessaiy  to  its  validity  that  it  should  be  sealed. ®° 

The  date  is  not  a  material  part  of  a  will.    It  will  be  held  valid 

Herbert  v.  Berrier,  81  Ind.  1.  Where  that  this,  as  a  ground  of  contest  after 
one  expresses  a  wish  to  make  a  will,  probate,  was  frivolous.  Hallowell  v. 
directs  it  to  be  prepared,  and  this  Hallowell,  88  Ind.  251. 
having  been  done,  signs  it,  a  request  '''''  Berricklow  v.  Stewart,  163  Ind. 
by  the  person  who  prepared  it,  made  438,  72  N.  E.  128 ;  Herbert  v.  Berrier, 
in  the  hearing  of  the  testator,  that  81  Ind.  1 ;  Underbill  Wills,  §.  200. 
persons  shall  attest  it,  not  objected  to,  ^'Johnson  v.  Johnson,  106  Ind.  475, 
is  in  law  a  request  of  the  testator.  7  N.  E.  201,  55  Am.  Rep.  762; 
Dyer  v.  Dyer,  87  Ind.  13.  Hayes  v.  West,  37  Ind.  21.  If 
**  Herbert  v.  Berrier,  81  Ind.  1 ;  one  who  subscribes  a  will  as  an 
Cleveland  v.  Spilman,  25  Ind.  95.  attesting  witness  be  competent  for 
^  Herbert  v.  Berrier,  81  Ind.  1.  that  purpose  he  is  a  fit  person  to  write 
^Jarman  Wills,  p.  763,  note.  The  the  testator's  name  thereto  at  his  re- 
name and  seal  of  the  testator  ap-  quest.  Herbert  v.  Berrier,  81  Ind.  1. 
peared  after  the  attestation  clause  on  ^^  Doe  v.  Pattison,  2  Blackf.  (Ind.) 
the  right,  with  the  signatures  of  at-  355. 
testing  witnesses   on   the  left.     Held, 


§  47^  EXECUTION,    REVOCATION    AND    PROBATE.  82 1 

without  any  date,  or  a  wrong  one.  If  the  actual  time  of  its  exe- 
cution should  become  material,  that  fact  may  be  established  by 
parol  proof/ 

The  power  to  make  wills,  the  manner  of  their  execution,  and 
their  efficiency  when  made,  are  matters  of  statutory  regulation;^ 
and  where  the  last  will  of  a  testator  has  been  executed  and  at- 
tested in  another  state,  and  such  testator  afterward  becomes 
domiciled  in  this  state  and  dies  here,  the  due  execution  of  such 
will  must  be  determined  by  the  laws  of  this  state.^ 

A  will  executed  on  Sunday  is  valid.*  All  instruments  testa- 
mentary in  their  character  that  make  or  attempt  to  make  a  dis- 
position of  property  after  the  death  of  the  person  executing  them 
must  be  executed  with  the  same  formalities  as  is  required  by 
wills. ^ 

Where  a  will  has  been  prepared  and  signed  by  the  testator  a 
request  made  by  the  person  who  prepared  the  will,  made  in  the 
presence  of  the  testator,  to  persons  to  attest  his  signature  as  wit- 
nesses, is  equivalent  to  a  request  by  the  testator.® 

§  476.  Nuncupative  wills. — A  nuncupative  will  is  defined 
to  be  an  oral  testament,  declared  by  a  testator  in  extremis  before 
a  sufficient  number  of  witnesses,  and  afterwards  reduced  to 
writing.'^ 

While  such  wills  are  of  Roman  origin,  they  were  recognized 
by  the  common  law.^    At  common  law,  however,  only  personal 

^  Wright  V.  Wright,  5  Ind.  389 ;  Jar-  cation   on  that   day.     Rapp   v.   Reeh- 

man  W^ills,  p.  122.  ling,  124  Ind.  36,  23  N.  E.  Ill,  7  L.  R. 

-  Dyer  v.  Dyer,  87  Ind.  13.  A.  498. 

'  Patterson  v.  Ransom,  55  Ind.  402.  ^  Moore   v.    Stephens,   97   Ind.  271 ; 

'Rapp  V.  Reehling,  124  Ind.  Z(),  23  McCarty  v.  Waterman,  84  Ind.  550; 
N.  E.  m,  7  L.  R.  A.  498 ;  Bennett  v.  Wolfe  v.  Wilsey,  2  Ind.  App.  549,  28 
Brooks,  9  Allen  (Mass.)  118;  Beiten-  N.  E.  1004. 
man's  Appeal,  55  Pa.  St.  183 ;  George  "  Dyer  v.  Dyer,  87  Ind.  13. 
V.  George,  47  N.  H.  27.     The  drafting  '  Wharton  Law  Die,  531. 
and   execution  of   a  will  on   Sunday  *  Sandars  Just.  243 ;  Cowp.  90.    The 
does  not  come  within  the  definition  of  Institutes  of  Justinian  provided  that 
"common  labor,"  so  as  to  make  it  a  if  any  one  wished  to  make  a  testa- 
penal  offense  to  be  found  engaged  in  ment  valid  by  the  civil  law,  without 
common  labor,  or  in  one's  usual  avo-  writing,  he  might  do  so  if,  in  the  pres- 


822 


INDIANA  PROBATE  LAW, 


476 


property  could  be  passed  by  an  oral  will.®  It  was  not  at  first  nec- 
essary that  such  wills  should  be  made  in  extremis.  But  as  nun- 
cupative wills  came  to  be  made  the  vehicles  for  the  perpetration 
of  gross  frauds,  great  restrictions  were  thrown  around  their 
making,  proof  and  construction  both  by  the  statute  of  frauds  and 
the  statute  of  wills. ^" 

At  first,  owing  to  the  illiteracy  of  the  times,  nuncupative  wills 
were  favorably  considered. ^^  But  they  are  not  now  favorites  of 
the  law  and  cannot  be  established  except  upon  strict  proof  and 
compliance  with  all  the  requirements  of  the  law,  and  are  restricted 
to  cases  falling  clearly  within  the  reason  of  the  statute.^*  Such 
will  can,  under  no  circumstances,  revoke  a  written  will.^^ 

No  particular  form  is  prescribed  for  such  wills,  but  the  intent 


ence  of  seven  witnesses,  he  verbally 
declared  his  wishes,  and  such  will 
would  be  perfectly  valid. 

"Co.  Litt.  3;  4  Kent.  516.  Godol- 
phin,  p.  13.  "Testaments  are  called 
nuncupative  when  the  testator,  with- 
out any  writing,  doth  declare  his  will 
before  a  sufficient  number  of  wit- 
nesses; and  such  nuncupative  will  is 
of  as  great  force  and  efficacy  (except 
for  lands,  tenements  and  heredita- 
ments) as  any  written  testament. 
Such  testaments  are  supposed  to  be 
of  the  greatest  antiquity,  and  far 
more  ancient  than  written  wills,  as  be- 
ing in  use  and  practice  before  letters 
were  known." 

'"Prince  v.  Hazleton,  20  Johns.  (N. 
Y.)  502,  11  Am.  Dec.  307,  the  leading 
American  case  on  nuncupative  wills ; 
Ellington  v.  Dillard,  42  Ga.  361 ;  2  Bl. 
Com.  500.  "When  a  man  is  sick,  and 
for  fear  that  death  or  want  of  mem- 
ory should  surprise  him,  that  he 
should  be  prevented  if  he  stayed  the 
writing  of  his  testimony,  desires  his 
neighbors  and  friends  to  bear  witness 
of  his  last  will,  and  then  declares  the 
same    presently    by    word."     Bacon's 


Abr.  Wills,  305.  Such  will  is  defined 
by  another  ancient  writer  to  be 
"where  the  testator  lieth  languishing 
for  fear  of  sudden  death,  dareth  not 
to  stay  the  writing  of  his  testament, 
and,  therefore,  he  prayeth  his  curate 
and  others,  his  neighbors,  to  bear  wit- 
ness of  his  last  will,  and  declareth  by 
word  what  his  last  will  is."  Perkins, 
§  476. 

"  Swinburne  on  Wills,  pt.  1,  §  12, 
par.  6;  Nab  v.  Nab,  10  Mod.  404. 

"  Pierce  v.  Pierce,  46  Ind.  86;  Scaife 
V.  Emmons,  84  Ga.  619,  10  S.  E.  1097, 
20  Am.  St.  383 ;  Ridley  v.  Coleman,  1 
Sneed  (Tenn.)  616;  Jones  v.  Norton, 
10  Tex.  120;  Biddle  v.  Biddle,  36  Md. 
630;  Woods  v.  Ridley,  27  Miss.  119. 
The  factum  of  a  nuncupative  will  re- 
quires to  be  proved  by  evidence  more 
strict  and  stringent  than  that  of  a 
written  one,  in  addition  to  all  the  sev- 
eral requisites  to  its  validity,  under 
the  statute  of  frauds,  being  duly 
proved  to  entitle  it  to  probate.  Le- 
mann  v.  Bonsall,  1  Addams  147. 

^  Brook  V.  Chappell,  34  Wis.  405, 
McCune  v.  House,  8  Ohio  144,  31  Am. 
Dec.  438. 


§  476  EXECUTION,    REVOCATION    AND    PROBATE.  823 

to  make  a  will  must  be  plain.  It  must,  however,  be  made  by 
spoken  words  or  signs,  and  may  be  made  in  answers  to  ques- 
tions." 

Nor  were  there  originall}^  any  particular  formalities  required 
in  making-  such  wills,  but  this  is  now  changed  by  statute,  and  the 
formalities  of  execution  required  by  the  statute  must  be  strictly 
observed.^^ 

In  this  state  those  who  may  make  such  wills  may  be  divided 
into  the  privileged  and  the  unprivileged.  To  the  first  class  belong 
soldiers  and  sailors  who  may  dispose  of  all  personal  property  in 
their  possession  actually,  including  their  wages.  The  other  class 
is  limited  in  amount  to  one  hundred  dollars  of  personal  property. 
As  to  this  latter  class,  the  statute  provides  that,  "No  nuncupative 
will  shall  be  valid  when  more  than  the  value  of  one  hundred  dol- 
lars is  bequeathed,  nor,  unless  it  be  made  in  the  last  sickness  of 
the  testator,  and  the  subject  thereof  be  reduced  to  writing  within 
fifteen  days  after  it  shall  have  been  declared  and  proved  by  two 
competent  witnesses,  who  shall  have  heard  the  testator,  in  effect, 
request  some  one  present  to  bear  witness  thereto;  and  no  such 
nuncupative  will  shall  be  proved  after  six  months  from  the  death 
of  the  testator,  nor  until  his  widow  and  heirs  shall  have  reason- 
able notice  of  the  time  and  place  of  proving  the  sanie."^'' 

"Hubbard  v.  Hubbard,  8  N.  Y.  196;  do  leave  some  understanding  also  of 

Mulligan   v.    Leonard,   46   Iowa  692;  his  will  and  meaning." 

Starrs  V.  Mason,  32  La.  Ann.  8;  In  re  ^^  Succession    of     Dorries,    Zl    La. 

Yarnall's  Will,  4  Rawle   (Pa.)  46,  26  Ann.  833;  Arnett  v.  Arnett,  27  111.  247, 

Am.   Dec.   115;    Harrington   v.    Stees,  81  Am.  Dec.  227;  Pierce  v.  Pierce,  46 

82  111.  50,  25  Am.  Rep.  290;  Lucas  v.  Ind.   86.     A  nuncupative   will   cannot 

Goff,  2)1  Miss.  629 ;  Campbell  v.  Camp-  be     established     where     neither     the 

bell,  21  Mich.  438.     Swinb.,  Part  I,  §  words  nor  their  substance,  as  used  by 

12 ;  Part  VII,  §  26.     "As  for  any  pre-  the  alleged  testator,  were  committed 

cise  form  of  words,  none  is  required;  to  writing  by  any  one  as  a  proof  of  a 

neither  is  it  material  whether  the  tes-  bequest,  or  to  be  preserved  as  such, 

tator  do  speak  properly  or  improperly,  and  no  proof  was  made  of  a  request 

so   that    his    meaning    do    appear,    as  by  the  testator  to  the  bystanders  to 

hath  been  heretofore  confirmed  by  di-  bear  witness  that  the  words  used  were 

vers  examples,  but  it  is  not  sufficient  his  will.     Taylor's  Appeal,  47  Pa.  St. 

for  the  testator  to  leave  a  sound  in  31. 

the  ears  of  the  witnesses,  unless  he  "  Burns'  R.  S.  1908,  §  3133.  A  paper 


824 


IXDIAXA    PROBATE    LAW 


§477 


One  of  the  most  important  provisions  of  this  statute  is  that 
such  will  must  be  made  during  the  last  sickness  of  the  testator, 
and  sometimes  it  is  a  matter  of  no  little  difficulty  to  determine 
just  when  a  person  comes  within  this  provision. 

§  477.  The  statute  construed. — Nuncupative  wills  should 
be  restricted  to  cases  falling  clearly  within  the  language  of  the 
statute.  Under  this  section  property  bequests  cannot  exceed  in 
value  one  hundred  dollars,  and  the  will  must  be  made  during  the 
last  sickness  of  the  testator,  and  reduced  to  writing  within  fifteen 
days  after  such  testator  has  so  declared  his  intention.  It  must  be 
proved  by  two  competent  witnesses  who  were  recjuested  to  bear 
witness  thereto,  or  heard  the  request,  in  effect,  made  by  the  testa- 
tor, and  such  proof  must  be  made  within  six  months  after  the 
testator's  death,  and  after  reasonable  notice  to  his  widow  and 
heirs." 

No  words  can  be  sustained  as  a  nuncupative  will,  unless  the 
person  using  them  lias  the  intention  of  making  them  his  will,  and 


writing  declared  and  signed  as  his 
will  by  a  person  who  was  sick,  but 
not  in  extremis  at  the  time,  and  at- 
tested and  witnessed,  whatever  else  it 
may  be  considered,  is  in  no  sense  a 
nuncupative  will.  Ellington  v.  Dillard, 
42  Ga.  361.  A  text  writer  says :  "In 
the  majority  of  states  it  is  held  that 
the  term  'last  illness'  means  an  illness 
so  violent  that  the  testator  had  not  the 
time,  opportunity  and  means  at  hand, 
after  making  his  oral  will  to  make  a 
written  will  in  legal  form."  And  in 
other  states,  he  says,  it  is  held  that  a 
vv'ill  made  during  the  last  illness,  as 
already  defined,  is  a  valid  nuncupative 
will,  even  though  testator  had  oppor- 
tunity, after  making  such  will  before 
his  death,  to  make  a  written  will.  It 
will  be  observed  that  our  statute  uses 
the  words  "last  sickness"  instead  of 
"last  illness."  These  words,  however, 
are  synonymous.  The  probability  is 
that,  following  a  rule  of  a  strict  con- 


struction, our  courts  will  hold,  with 
the  majority,  that  if  a  testator 
has  the  time  and  opportunity  and 
means  at  hand,  after  he  has  made  an 
oral  will,  to  have  reduced  it  to  writ- 
in'/,  it  cannot  be  admitted  as  a  vaHd 
nuncupative  will.  It  is  probable  that 
no  definite  rule  can  be  given  on 
this  subject,  but  such  case  will  be 
governed  largely  by  the  circumstances 
surrounding  it. 

''  Pierce  v.  Pierce,  46  Ind.  86.  A 
will  offered  as  a  nuncupative  will, 
which  was  made  nine  days  before  the 
death  of  the  testator,  cannot  be  ad- 
mitted to  probate  where  there  is  clear 
proof  that  such  testator  had,  during 
such  nine  days,  both  time,  capacity 
and  opportunity  to  have  made  a  writ- 
ten will.  Carroll  v.  Bonham,  42  N.  J. 
Eq.  625,  9  Atl.  371.  And  so  where 
under  like  circumstances  six  days  in- 
tervened before  the  testator's  death. 
Morgan  v.  Stevens,  78  111.  287. 


477 


EXECUTION,    REVOCATION    AND    PROBATE. 


825 


believes  that  he  is  making  a  will."  Mere  verbal  instructions  and 
directions  for  drawing  up  a  written  will,  although  made  in  the 
presence  of  a  proper  number  of  witnesses,  do  not  constitute  a 
nuncupative  will." 

It  is  considered  indispensable  to  the  validity  of  such  will  that 
the  testator  should  request  some  of  those  present  to  bear  witness 
that  such  was  his  last  will,  or  do  something  which  is  equivalent 
to  such  request.-" 

In  reducing  such  will  to  writing  the  exact  words  of  the  verbal 
declaration  of  the  testator  need  not  be  preserved,  but  the  sub- 
stance of  what  is  said  by  him  must  be  retained.-^ 

It  must  be  reduced  to  writing  within  the  period  required  by  the 
statute  and  shown  to  and  approved  by  each  of  the  attesting  wit- 
nesses.^^ 

Where  the  statute  requires  two  witnesses,  its  requirements  are 
not  satisfied  by  making  the  same  oral  declaration  to  one  witness 
at  one  time  and  the  other  at  another  time."^ 


"Gibson  V.  Gibson,  Walk.  (Miss.) 
364;  Mulligan  v.  Leonard,  46  Iowa 
692. 

"Dockum  V.  Robinson,  26  N.  H. 
372 ;  Lucas  v.  Goff,  33  Miss.  629.  An 
oral  will  must  substantially  conform 
to  the  law,  and  it  must  clearly  appear 
that  a  will  was  intended.  Where  A., 
a  few  days  before  her  death,  stated 
how  she  wished  her  property  di- 
vided, but  did  not  ask  any  one  present 
to  keep  in  mind  that  this  was  her  will, 
it  was  held  insufficient  as  an  oral  will. 
Ridley  v.  Coleman,  1  Sneed  (Tenn.) 
616. 

-'"Arnett  v.  Amett,  27  111.  247,  81 
Am.  Dec.  227;  Sampson  v.  Browning, 
22  Ga.  293;  Babineau  v.  Le  Blanc,  14 
La.  Ann.  729;  Biddle  v.  Biddle,  36 
Md.  630;  Dawson's  Appeal,  23  Wis. 
69;  Pierce  v.  Pierce,  46  Ind.  86; 
Broach  v.  Sing,  57  Miss.  115. 

"^  Landry  v.  Tomatis,  32  La.  Ann. 
113;  Marks  v.  Bryant,  4  H.  &  M. 
(Va.)  91. 


-Welling  V.  Owings,  9  Gill  (Md.) 
467. 

^Wester  v.  Wester,  5  Jones  (N. 
Car.)  95;  In  re  Yarnall's  Will,  4 
Rawle  (Pa.)  46,  26  Am.  Dec.  115; 
Offutt  V.  Offutt,  3  B.  Mon.  (Ky.)  162, 
38  Am.  Dec.  183 ;  Prince  v.  Hazleton, 
20  Johns.  (N.  Y.)  502,  11  Am.  Dec. 
307.  Nuncupative  wills  or  testaments 
(which  have  a  place  in  the  Roman 
civil  law)  are  so  called  from  nuncu- 
pare,  to  name,  declare  or  make  a  sol- 
emn declaration,  because  the  testator 
declares  his  will  in  extremis  before  a 
sufficient  number  of  witnesses  whose 
oral  proof  must  afterwards  establish 
it.  These  verbal  wills  offer  great 
temptation  to  fraud  and  perjury,  be- 
sides occasioning  much  honest  error, 
and  the  need  of  them  lessens  as  the 
art  of  penmanship  becomes  more  uni- 
versal and  writing  materials  abound. 
The  Statute  of  Frauds,  29  Car.  II,  ch". 
3,  laid  them  under  various  restric- 
tions ;    and   the    tenor    of    legislation, 


826  INDIANA  PROBATE  LAW.  §  478 

§  478.  Such  wills  by  soldiers  and  sailors. — Wills  made  by 
soldiers  in  actual  military  service  and  mariners  at  sea  are  con- 
strued with  greater  liberality  than  nuncupative  wills  of  other 
persons.  The  ordinary  formalities  of  executing  nuncupative 
wills  were,  by  the  civil  law,  dispensed  with  in  favor  of  soldiers, 
and  such  wills,  by  them,  were  held  valid,  although  they  should 
neither  call  the  legal  number  of  witnesses,  nor  observe  any  other 
of  the  usual  formalities  in  the  execution  of  such  instruments,  and 
this  privilege  was  also  extended  to  the  naval  service.'* 

Our  statute  provides  that  "nothing  contained  in  this  chapter 
shall  prevent  any  soldier,  in  actual  military  service,  nor  any  mar- 
iner, at  sea,  from  disposing  of  his  personal  estate,  in  his  actual 
possession,  and  his  wages,  by  a  nuncupative  will."-^  By  this  sec- 
tion two  classes  of  persons  are  authorized  to  make  a  nuncupa- 
tive will,  soldiers,  in  actual  military  service,  and  mariners,  at  sea. 
Such  persons  may  dispose  of  their  personal  estate  in  their  actual 
possession,  and  their  wages,  by  such  a  will.  A  soldier  must  have 
been  actually  accepted  and  regularly  mustered  into  military  serv- 
ice to  entitle  him  to  the  privilege  granted  by  this  statute."*^  Only 
personal  estate  in  the  actual  possession  of  such  person  can  be 

English  and  American,  at  the  present  on  this  point  that  the  term  "soldier" 
day  is  to  invalidate  them  altogether,  embraces  every  grade,  from  the  pri- 
except  as  to  soldiers  in  actual  military  vate  to  the  highest  officer,  and  in- 
service  and  mariners  at  sea.  Schouler  eludes  the  gunner,  the  surgeon,  or  the 
on  Wills,  §  6.  general;  and  the  term  "mariner"  ap- 
'*  1  Redf .  on  Wills,  193 ;  Ex  parte  plies  to  every  person  in  the  naval  serv- 
Thompson,  4  Bradf.  (N.  Y.)  154.  ice,  from  the  common  seaman  to  the 
The  opinion  in  this  case  contains  a  captain  or  admiral.  But  it  does  not 
concise  review  of  the  history  of  nun-  include  mariners,  though  at  sea,  virho 
cupative  wills  which  may  be  consulted  are  so  as  passengers,  nor  soldiers  in 
by  those  interested  in  the  question  of  time  of  peace,  or  when  not  in  actual 
unwritten  wills.  Woerner  Am.  Law  service.  But  by  actual  service  is  not 
Admin.,  §  46,  says  :  "In  the  absence  meant  that  he  should  be  engaged  in  or 
of  statutory  regulations  on  the  sub-  on  the  eve  of  a  battle;  if  he  is  in  the 
ject,  the  usual  conditions  to  nuncupa-  enemy's  country,  or  under  military  or- 
tive  wills  are  not  applicable  to  the  ders,  whether  in  camp  or  campaign 
wills  of  soldiers  or  mariners;  the  sin-  service,  he  is  in  actual  military  serv- 
gle  question  being  whether  the  de-  ice;  and  so  if  he  be  at  the  time  in  a 
ceased  comes  within  the  class  of  per-  hospital." 
sons  under  consideration;  namely,  ^  Burns' R.  S.  1908,  §  3134. 
whether  he  was  a  soldier  in  actual  ^  Pierce  v.  Pierce,  46  Ind.  86. 
service  or  a  mariner  at  sea.  It  is  held 


§  47^  EXECUTION,    REVOCATION    AND    PROBATE.  827 

disposed  of  by  nuncupation;  a  nuncupative  will  made  under  the 
provisions  of  this  section  of  the  statute  cannot  pass  the  title  to 
real  estate."^ 

It  is  not  necessary  that  wills  made  by  these  classes  should  be 
made  in  extremis  to  be  valid.^*  And  the  term  '"soldier"  embraces 
those  in  every  militaiy  grade,  no  heed  being  paid  to  rank.-^  The 
term  "mariner"  includes  those  either  in  the  navy  or  merchant 
service,  to  the  cook  or  purser,  as  well  as  to  the  sailors.^'' 

A  soldier  must  be  in  actual  military  service.  A  volunteer  en- 
rolled, but  not  accepted  and  mustered  into  service  does  not  fall 
within  the  intention  of  the  statute. ^^  But  a  soldier  who  falls  sick 
while  upon  the  march,  and  soon  after  dies  in  the  hospital,  is  re- 
garded as  in  actual  military  service."- 

A  soldier  at  home  on  a  furlough,  however,  cannot  make  a  valid 
nuncupative  will.^^ 

A  mariner  must  be  at  sea.  The  privilege,  however,  continues 
while  the  ship  is  in  harbor,^*  or  to  seamen  who  may  be  tempo- 
rarily on  shore,^^  but  not  a  sailor  en  route  to  his  ship,  nor  in 
service  upon  a  river. ^^ 

This  statute  prescribes  no  particular  mode  of  making  such 
wills,  nor  does  it  desigTiate  the  number  of  witnesses  required.  It 
has  been  held  that  a  soldier's  will  may  be  established  by  the  testi- 
mony of  one  witness.^^  Nor  is  it  necessary  that  an  executor  be 
named  in  such  will.^* 

=•  Pierce  v.  Pierce,  46  Ind.  86.  '•  Gould  v.  Safiford,  39  Vt.  498.     The 

"*Van    Deuzer    v.    Gordon,    39    Vt.  language   of   the   statute  where   it  is 

111;    Leathers   v.    Greenacre,   53   Me.  prescribed  need  not  be  used.     A  mar- 

561 ;    Ex   parte    Thompson,   4   Bradf .  iner  at  sea,  in  his  last  sickness  and 

(N.  Y.)  154.  within   an  hour   of   his   death,   being 

^  Schouler  Wills,  §  366.  asked  what  disposition  he  wished  to 

**  Hubbard  V.  Hubbard,  8  N.  Y.  196;  make    of    his    propertj%    replied:     "I 

Morrell  v.  Morrell,  1  Hag.  51.  want  my  wife  to  have  all  my  personal 

^  Pierce    v.     Pierce,    46    Ind.    86 ;  propertj-."  This  declaration  was  made 

Leathers  v.  Greenacre,  S3  Me.  561.  in  the  presence  of  four  witnesses,  and 

^-  Gould  V.  Safiford,  39  Vt.  498.  the  testator  was  at  the  time   of   the 

^  In    re    Will    of    Smith,    6    Phila.  declaration  of  sound  mind  and  mem- 

(Pa.)  104.  ory  and  under  no  restraint.    This  was 

^*  Hubbard  v.  Hubbard,  8  N.  Y.  196.  held  to  be  a  good  nuncupative  will. 

""  Goods  of  Lay,  2  Curt.  144.  Hubbard  v.    Hubbard,   12  Barb.    (N. 

^Warren  v.  Harding,  2  R.  L  133;  Y.)  148. 

Gwin's  Will,  Tuck.  (N.  Y.)  44.  ^^  Hubbard  v.  Hubbard,  8  N.  Y.  196. 


828 


INDIANA    PROBATE    LAW. 


479 


§  479.  Instruments  of  a  testamentary  character. — An  in- 
strument of  conveyance  which  has  been  executed  according  to 
the  statute  which  is  to  operate  in  the  Hfetime  of  the  grantor,  and 
which  passes  any  estate  in  the  property  during  the  grantor's  Hfe, 
though  the  absolute  enjoyment  of  the  estate  is  postponed  until 
after  the  grantor's  death,  is  a  deed  and  not  a  will.^^ 

All  such  will  be  invalid  as  wills  unless  they  have  been  executed 
and  attested  by  two  or  more  witnesses,  with  such  formality  as  is 
required  in  the  case  of  wills.'*" 

When  an  instrument  on  its  face,  and  in  its  true  character  ap- 
pears to  be  a  will,  but  has  not  been  properly  attested,  the  fact  that 
it  was  never  revoked  during  the  life  of  the  maker  will  give  it  no 


^'^  Spencer  v.  Robbins,  106  Ind.  580, 
5  N.  E.  726;  In  re  Will  of  Diez,  SO  N. 
Y.  88;  Gates  v.  Gates,  135  Ind.  272,  34 
N.  E.  957;  Owen  v.  Williams,  114  Ind. 
179,  15  N.  E.  678.  In  Stroup  v. 
Stroup,  140  Ind.  179,  39  N.  E. 
864,  27  L.  R.  A.  523,  it  is  said :  "In 
19  Gent.  L.  J.  46  will  be  found  an  ex- 
tended collection  of  the  cases  upon 
the  subject  of  deeds  of  a  testament- 
ary character,  and  there,  as  in  the 
cases  we  have  cited,  it  is  clearly  and 
iirmly  settled  that  the  pivotal  question 
is  the  intention  of  the  grantor.  If  to 
postpone  title  and  enjoyment  until 
after  his  death,  it  is  testamentary;  if 
to  confer  title  and  postpone  the  enjoy- 
ment thereof,  it  is  a  deed."  The  court 
cites  Wall  v.  Wall,  30  Miss.  91,  64 
Am.  Dec.  147;  Leaver  v.  Gauss,  62 
Iowa  314,  17  N.  W.  522;  Turner  v. 
Scott,  51  Pa.  St.  126.  And  in  Wilson 
v.  Garrico,  140  Ind.  533,  49  Am.  St. 
213n,  40  N.  E.  50,  the  court  says: 
"Upon  the  other  hand,  the  learned 
counsel  for  appellee  say  that  they  do 
not  controvert  but  what  the  instru- 
ment in  question  was  intended  by  the 
parties  as  a  deed,  and  not  as  a  will, 
and  concede  that  it  has  all  the  formal- 
ities of  the  former.    But  they  contend 


that  it  was  the  evident  purpose  and 
intent  of  the  grantor  to  reserve  all  the 
estate  which  he  intended  to  convey, 
and  that  the  deed  was  not  to  take  ef- 
fect until  after  the  death  of  himself 
and  wife,  and  that  hence  it  must  be 
held  to  be  testamentary  in  its  charac- 
ter, and  therefore  void  for  the  reason 
that  it  is  not  executed  in  accordance 
with  requirements  of  the  statute  on 
wills.  The  instrument  in  question 
calls  for  a  judicial  construction,  and 
in  this  the  court  must  seek  for  and  be 
guided  by  the  intention  of  the  grantor. 
*"  Moore  v.  Stephens,  97  Ind.  271 ; 
McGarty  v.  Waterman,  84  Ind.  550; 
Wolfe  V.  Wilsey,  2  Ind.  App.  549,  28 
N.  E.  1004.  Where  notes,  payable  at 
the  death  of  the  testator,  were  folded 
up  with  his  will  and  remained  in  his 
possession  at  the  time  of  his  death, 
and  were  clearly  and  fully  identified, 
they  formed  part  of  the  will.  It  was 
not  important  that  there  had  been  no 
delivery  of  the  notes.  Their  existence 
as  a  writing  of  a  character  that  could 
be  incorporated  in  the  will,  and  their 
identification,  satisfied  all  require- 
ments. A  schedule  signed  by  a  wit- 
ness to  a  will  cannot  be  regarded  as  a 
part  of  the  will,  unless  it  is  in  some 


479 


EXECUTION,    REVOCATION    AND    PROBATE. 


829 


validity  after  his  death.  And  until  such  an  instrument  has  been 
admitted  to  probate,  it  can  neither  operate  to  vest  or  establish 
any  right,  nor  can  it  be  used  as  evidence  of  any  right  claimed 
under  it.*^ 

An  instrument  testamentary  in  character,  though  invalid  as  a 
will,  will  be  given  some  effect  if  possible.  The  rule  is  that  unless 
an  instrument,  which  has  been  fully  executed  from  every  point 
of  view  seems  to  be  a  nullity,  it  will  not  be  intended  that  the 
parties  meant  that  it  should  be  invalid,  and  if  possible  some  effect 
will  be  given  it.*^ 

One   text   writer  deduces    from   the   authorities  these   rules: 

1.  That  if  it  were  the  writer's  intention  to  convey  benefits  which 
would  be  conveyed  if  the  paper  were  a  will,  and  that  such  convey- 
ance should  take  effect  only  in  case  of  his  death,  then,  whatever 
be  the  form,   it  may  be  admitted  to  probate  as  testamentary. 

2.  That  instruments  in  their  terms  dispositive  are  entitled  to  pro- 


way  identified.  Fickle  v.  Snepp,  97 
Ind.  289,  49  Am.  Rep.  449n. 

"Moore  v.  Stephens,  97  Ind.  271; 
State  V.  Joyce,  48  Ind.  310;  Pitts  v. 
Melser,  72  Ind.  469.  A  written  con- 
tract whereby  A  agreed  with  B  that, 
if  the  latter  wovild  maintain  the  for- 
mer during  life,  all  the  personal  prop- 
erty that  might  belong  to  A  should, 
at  his  death,  become  the  property  of 
B,  did  not  on  A's  death  transfer  the 
property  to  B,  said  contract  not  being 
attested  as  is  required  of  a  will.  Mc- 
Carty  v.  Waterman,  84  Ind.  550. 

"Spencer  v.  Robbins,  106  Ind. 
580,  5  N.  E.  726;  Gates  v.  Gates,  135 
Ind.  272,  34  N.  E.  957 ;  Wolfe  v.  Wil- 
sey,  2  Ind.  App.  549,  28  N.  E.  1004; 
Gaviness  v.  Rushton,  101  Ind.  500,  51 
Am.  Rep.  759;  Price  v.  Jones,  105 
Ind.  543,  5  N.  E.  683,  55  Am.  Rep. 
230.  Where  the  grantor  signs  and 
acknowledges  a  voluntary  deed  to  his 
children  as  grantees,  in  consideration 
of    natural    love    and    affection,    and, 


without  having  such  deed  recorded  in 
the  proper  recorder's  office,  seals  it  up 
in  an  envelope  and  deposits  the  same 
with  his  agent  to  be  delivered  to  the 
grantees  after  his  death,  and  where 
such  deed,  by  its  terms,  is  not  to  take 
effect  until  after  the  grantor's  death, 
the  deed  is  an  attempted  testamentary 
disposition  of  the  land  described 
therein,  and,  if  not  executed  with  the 
legal  formalities  of  a  will,  is  inopera- 
tive to  pass  the  title  to  the  land  to  the 
grantees.  And  where  the  grantor  dies 
insolvent  long  after  he  placed  such 
deed  in  the  hands  of  his  agent,  the 
subsequent  delivery  of  the  deed  will 
be  ineffectual  to  defeat  the  rights  of 
the  grantor's  creditors  and  adminis- 
trator to  sell  the  land  for  the  payment 
of  his  debts;  for  the  rule  is  that  the 
doctrine  of  relation,  which  alone 
could  give  eft'ect  to  such  deed,  will  not 
be  permitted  to  apply  so  as  to  do 
wrong  or  injury  to  strangers  to  the 
deed.     Jones  v.  Loveless.  99  Ind.  317. 


830  INDIANA  PROBATE  LAW.  §  480 

bate  unless  proved  not  to  have  been  executed  animo  testandi, 
while  such  as  are  equivocal  in  character  must  be  proved  to  have 
been  executed  animo  testandi.*^ 

It  is  said  that  when  it  can  have  no  effect  as  a  deed,  the  court  is 
inclined  to  regard  it  as  a  will,  if  in  that  character  effect  can  be 
given  to  the  evident  intention  of  the  maker.  The  controlling  ques- 
tion is,  whether  the  maker  intended  that  an  estate  or  interest 
should  vest  before  his  death." 

Our  own  court  says :  "We  think  it  may  be  affirmed,  as  a  just 
deduction  from  the  cases,  that  no  matter  by  what  name  the  parties 
may  call  their  agreement,  or  to  what  extent  there  may  be  con- 
tractual provisions  in  it,  yet  if  a  provision  of  a  clearly  testa- 
mentary character  is  found  in  the  writing  and  it  is  witnessed  in 
accordance  with  the  requirements  of  the  law,  it  may  operate  as 
a  will."^^  It  is  the  leading  object  with  courts  of  justice  to  give 
effect  to  the  intention  of  parties,  both  in  their  deeds  and  wills,  and 
cases  may  be  found  in  which  courts  have  exhibited  a  like  anxiety 
to  uphold  as  deeds  instruments  which  could  not  operate  as  w411s. 

W^here  the  writer's  intention  is  manifest  from  the  whole  in- 
strument that  it  shall  not  take  effect  until  his  death  and  shall  not 
pass  any  property  right  until  that  time,  it  is  held  to  be  inherently 
a  will  no  matter  what  outward  form  it  may  assume.*'^ 

An  instrument  executed  conformably  to  the  statute  with  all  the 
fomialities  of  a  will,  which  is  to  operate  in  the  lifetime  of  the 
grantor,  and  which  passes  an  estate  in  the  property  of  the 
grantor,  even  though  the  absolute  enjoyment  of  the  estate  passed 
is  postponed  until  after  the  grantor's  death,  is  a  deed  and  not  a 
will." 

§  480.  Revocation  of  wills. — It  is  provided  by  statute  that : 
"No  will  in  writing,  nor  any  part  thereof,  except  as  in  this  act 
provided,  shall  be  revoked  unless  the  testator,  or  some  other  per- 

*■■  Williams  Extrs.  &  Admrs.,  106.  ^  Heaston  v.  Krieg,  167  Ind.  101,  11 

**Trawick  v.  Davis,  85  Ala.  342,  5  X.  E.  805,  119  Am.  St.  475. 

So.  83;  Cover  v.  Stem,  67  Md.  449,  10  *"  Mosser  v.  Mosser,  32  Ala.  551. 

Atl.  231,  1  Am.  St.  406;  Edwards  v.  •'"Tansel  v.  Smith,  —  Ind.  App.  — , 

Smith,  35  Miss.  197;  Combs  v.  Jolly,  93  N.  E.  548;  In  re  Will  of  Diez,  50 

3  N.  J.  Eq.  625.  N.  Y.  88. 


§4^0  EXECUTION,    REVOCATION   AND    PROBATE.  83 1 

son  in  his  presence  and  by  his  direction,  with  intent  to  revoke, 
shall  destroy  or  mutilate  the  same ;  or  such  testator  shall  execute 
other  writing  for  that  purpose,  signed,  subscribed  and  attested, 
as  required  in  the  execution  of  a  will.  And  if,  after  the  making 
of  any  will,  the  testator  shall  execute  a  second,  a  revocation  of 
the  second  shall  not  revive  the  first  will,  unless  it  shall  appear,  by 
the  temis  of  such  revocation,  to  have  been  his  intent  to  revive  it, 
or  unless,  after  such  revocation,  he  shall  duly  republish  the  pre- 
vious will."*^ 

The  requirements  of  the  statute  in  reference  to  the  revocation 
of  wills  must  be  strictly  pursued,  and  whatever  is  done  by  a  tes- 
tator, to  be  effectual  as  a  revocation,  must  be  done  with  the  in- 
tention of  revoking  the  will.  Neither  the  act  nor  the  intention 
alone  will  be  sufficient :  they  must  concur.  The  act  of  revocation 
must  be  done  by  the  testator,  or  by  some  person  in  his  presence 
and  by  his  direction.  The  mere  intention  to  revoke  does  not  ren- 
der a  will  inoperative,  nor  does  the  belief  of  the  testator  that  the 
will  has  been  destroyed  or  otherwise  revoked  affect  its  validity.*' 
Tarman,  in  his  treatise  on  the  law  of  wills,  says :  "The  legisla- 
ture having  pointed  out  certain  modes  by  which  a  will  may  be 
revoked,  it  is  not  in  the  power  of  the  judicature,  under  any  cir- 
cumstances, to  dispense  with  part  of  its  requisitions  and  accept 
the  mere  intention  or  endeavor  to  perfomi  the  prescribed  act  as 
a  substitute  or  equivalent  to  the  act  itself,  though  the  intention 
or  endeavor  may  have  been  frustrated  by  the  improper  behavior 

*' Burns'  R.  S.  1908.  §  3115.  In  or-  ]\Irs.  Belshaw,  but  it  is  found  that  she 
der  to  constitute  a  valid  revocation  of  once  declared  an  intention,  never 
a  will  there  must  be  the  concurrence  thereafter  carried  into  effect,  to  make 
of  the  intention  to  revoke  and  an  act  certain  conveyances  and  then  to  de- 
manifesting  the  intention;  and  the  act  stroy  her  will.  That  these  facts  are 
must  be  such  as  the  statute  recognizes  insufficient  to  constitute  a  revocation 
as  a  proper  manifestation  of  the  in-  is  established  by  reference  to  the  stat- 
tention  to  revoke.     Woodfill  v.   Pat-  ute.'" 

ton.  76  Ind.  575,  40  Am.   Rep.  269;  "Runkle  v.  Gates,  11  Ind.  95;  Davis 

Forbing  v.  Weber,  99  Ind.   588.    In  v.  Fogle,  124  Ind.  41,  23  N.  E.  860.  7 

Belshaw  v.  Chitwood,  141  Ind.  2,77,  40  L.  R.  A.  485n ;  Wooler>-  v.  Wooler>-, 

X.  E.  908,  it  is  said:     "It  is  found  48  Ind.   llo;  Woodfill  v.   Patton.  76 

that  no  written  revocation  or  inten-  Ind.  575,  40  Am.  Rep.  269 :  Wright  v. 

tion  to  revoke  was  ever  executed  by  Wright,  5  Ind.  389. 


832  INDIANA    PROBATE    LAW.  §  480 

of  a  third  person."^^  Nor  will  any  addition  or  alteration  of  a 
will  made  b}'  the  testator  amount  to  a  revocation  of  such  will 
unless  it  is  made  with  intention  to  revoke/^ 

The  execution  of  a  new  will,  making  another  and  inconsistent 
disposition  of  the  testator's  property,  operates  as  a  revocation  of 
a  former  will  by  such  testator  disposing  of  the  same  property, 
and  this  is  so  whether  the  former  will  is  expressly  revoked  by 
the  latter  one  or  not.°"  And  such  second  will  may  become  opera- 
tive as  a  revocation  of  a  former  will,  although  it  may  be  inopera- 
tive in  all  other  respects. ^^ 

In  order  that  there  should  be  a  valid  revocation  there  must  be 
a  concurrence  of  the  intention  to  revoke  and  the  act  manifesting 
such  intention;  therefore,  if  a  testator  in  a  temporary  fit  of  in- 
sanity destroy  a  will  theretofore  made  by  him  it  is  not  thereby 
revoked,  and  it  may  be  established  by  proof  as  a  destroyed  will.^* 

A  will  may  be  revoked  by  implication,^^  and  a  will  after  its 
revocation  is  not  competent  for  any  purposes.^*' 

At  common  law  the  revocation  of  a  subsequent  inconsistent 
will,  revoking  a  former  will  operated  to  revive  the  former  when 
such  former  will  was  not  destroyed  by  the  testator.   But  this  rule 

°"  Jarmin  Wills,  ch.  7,  §  2.  The  eras-  testamentary   disposition   of   property 

lire  by  a  testator  of  his  signature  to  or  not.     Burns  v.  Travis,  117  Ind.  44, 

his   will,   designedly   and   deliberately  18  N.  E.  45. 

made,  accompanied  by  the  intention  to  ^"  Burns  v.  Travis,   117  Ind.  44,   18 

revoke,  must  be  deemed  a  destruction  N.   E.  45 ;   State  v.   Crossley,  69  Ind. 

of  the  will ;  and  his  purposely  draw-  203 ;  1  Jarman  Wills,  336. 

ing  a  pencil  or  other  implement  which  ^^  Burns  v.  Travis,   117  Ind.  44,    18 

erases,  cancels  or  obliterates,  over  his  N.  E.  45 ;  Laughton  v.  Atkins,  1  Pick. 

signature  to  the  will,  is  such  a  mutila-  (Mass.)  535. 

tion  as  takes  from  the  instrument  an  ^  Forbing  v.  Weber,  99  Ind.  588. 

element  essential  to  its  validity,  and  °' Graham  v.   Burch,  47  Minn.    171, 

is    therefore    a    revocation.     Woodfill  49  N.  W.  697,  28  Am.  St.  339n. 

V.  Patton,  76  Ind.  575,  40  Am.  Rep.  "^  State  v.  Crossley,  69  Ind.  203.  The 

269.  destruction   of   a  will   by   the   maker 

^^  Wright  V.  Wright,  5  Ind.  389.  If  during  a  temporary  fit  of  insanity  is 
a  will,  duly  subscribed  and  attested,  not  an  act  done  with  his  consent,  and 
expressly  revokes  all  prior  wills  exe-  does  not  revoke  it,  or,  under  the  stat- 
cuted  by  the  testator,  it  is  valid  for  ute,  prevent  its  proof  and  establish- 
that  purpose,  under  §  3115,  Burns'  R.  ment  as  one  destroyed.  Forbing  v. 
S.   1908,  whether  it  is  effectual  as  a  Weber,  99  Ind.  588. 


48 1 


EXECUTION,    REVOCATION    AND    PROBATE. 


833 


is  changed  by  the  above  statute  and  the  execution  of  a  subsequent 
will  making  a  disposition  of  property  inconsistent  with  the  former 
will  operates  to  revoke  the  former  will  and  the  revocation  of  such 
subsequent  will  does  not  of  itself  revive  the  former  will."' 

§  481.  Revocation  by  birth  of  a  child. — The  statute  pro- 
vides that,  "If,  after  the  making  of  a  will,  a  testator  shall  have 
born  to  him  legitimate  issue  who  shall  sui-vive  him,  or  shall  have 
posthumous  issue,  then  such  will  shall  be  deemed  revoked,  unless 
provision  shall  have  been  made  in  such  will  for  such  issue. "^* 

In  construing  this  section  of  the  statute  in  one  case,  the  court 
says :  "The  above  section  of  the  statute  is  so  plain  and  unequivo- 
cal as  to  leave  little  room  for  doubt  or  construction.  The  object 
of  the  statute  was  to  render  certain  and  definite  what  had  become 
uncertain  and  doubtful  by  reason  of  the  conflicting  decisions  of 


"Kern  v.  Kern,  154  Ind.  29,  55  X. 
E.  1004.  In  Harvvood  v.  Goodright,  1 
Cowp.  87,  92,  Lord  Mansfield  said: 
'"If  a  testator  makes  one  will  and  does 
not  destroy  it,  though  he  makes  an- 
other at  any  time  virtually  or  express- 
ly revoking  the  former;  if  he  after- 
wards destroy  the  revocation,  the  first 
will  is  still  in  force  and  good."  In  29 
Am.  &  Eng.  Ency.  of  law,  288,  it  is 
said :  "Where  the  later  of  two  incon- 
sistent wills  was  revoked  by  the  testa- 
tor in  his  lifetime,  it  was  held  by  the 
courts  of  common  law  that  the  earlier 
will  was  thereby  revived,  and,  unless 
afterwards  revoked  by  some  subse- 
quent act,  came  into  operation  on  his 
decease,  whether  the  later  will  con- 
tained an  express  clause  of  revocation 
or  not.  In  the  ecclesiastical  courts  it 
was  held  that  the  revocation  of  the 
later   will    raised   no   presumption   in 


Victoria  abolished  the  doctrine  by  ex- 
pressly providing  that  no  will  or  codi- 
cil, or  any  part  thereof,  which  shall  be 
in  any  manner  revoked,  shall  be  re- 
vived otherwise  than  by  the  re-execu- 
tion thereof,  or  by  a  duly  executed 
codicil  showing  an  intention  to  revive 
the  will.  In  several  of  the  states  sim- 
ilar statutes  exist,  under  which  the  re- 
vocation of  the  second  will  does  not 
revive  the  first,  unless  such  intent  ap- 
pear in  the  terms  of  the  revocation,  or 
the  first  will  be  duly  republished  af- 
terwards. In  the  absence  of  such  leg- 
islation the  rule  varies  greatly  in  the 
different  states." 

=' Burns'  R.  S.  1908,  §  3116.  The 
adoption  of  a  child,  under  the  statute 
of  this  state,  does  not  operate  to  re- 
voke an  antecedent  will  of  the  adopt- 
ing father,  although  he  has  made  no 
provision  by  the  will  or  otherwise  for 


favor  of  the  revival  of  the  earlier  will,  such  adopted  child.    By  §  3116,  Burns' 

but  that  the  question  depended  upon  R.  S.  1908,  the  revocation  of  a  will  is 

the  intention  of  the  testator  as  shown  not  contemplated  upon  the   adoption 

by    .the    peculiar    facts    and   circum-  of  a  child.      Davis  v.  Fogle,  124  Ind. 

stances  of  the  case,  and  was  open  to  41,  23  N.  E.  860,  7  L.  R.  A.  485n. 
decision  either  way.     The  Statute  of 


53— Pro.  Law. 


834  INDIANA  PROBATE  LAW.  §  482 

the  courts,  both  of  England  and  America.  The  ecclesiastical 
courts  very  early  adopted  the  rule  that  marriage  and  the  birth  of 
a  child  revoked  a  will  as  to  personalty,  and  the  same  principle 
was  ultimately,  but  not  without  a  struggle,  applied  to  devises 
of  real  estate.  Finally,  it  was  held  that  it  was  not  necessary  that 
subsequent  marriage  and  birth  of  a  child  should  both  concur,  but 
that  the  birth  of  a  child  alone,  in  connection  with  other  circum- 
stances, might  be  sufficient  to  raise  an  implied  revocation.  In 
some  of  the  cases  it  was  held  that  the  subsequent  birth  of  a  child 
only  revoked  the  will  as  to  such  child,  while  in  others  it  is  held 
that  it  was  not  necessary  that  the  provision  for  the  subsequent 
issue  should  be  made  in  the  will,  but  that  it  might  be  made  other- 
wise. The  most,  if  not  all,  of  the  American  states  have  adopted 
statutes  on  the  subject,  but  these  statutes  are  as  different  and 
conflicting  as  had  been  the  decision  of  the  courts.  Under  our 
statute,  the  birth  of  a  child  after  the  execution  of  a  will  works  an 
entire  revocation  of  the  will,  unless  provision  shall  have  been 
made  in  such  will  for  such  issue.  Such  is  the  plain,  express  and 
undoubted  requirement  of  the  statute,  and  it  is  our  imperative 
duty  to  carry  into  execution  the  legislative  intention. "^^  The  same 
rule  applies  in  the  case  of  the  birth  of  posthumous  child. ^" 

The  adoption  of  a  child  does  not  operate  to  revoke  an  antece- 
dent will  of  the  adopting  parent,  although  no  provision  for  such 
child  has  been  made  by  the  will  or  otherwise.®^ 

Property  acquired  after  the  execution  of  the  will,  and  which 
is  unaffected  thereby,  is  not  a  provision  for  after-born  children, 
so  as  to  prevent  revocation.®^ 

§  482.  Effect  of  child's  death. — While  the  birth  of  a  child, 
after  the  making  of  a  will,  will  work  a  revocation  of  such  will  as 

^"Hughes  V.   Hughes,  Zl   Ind.    183;  be  deemed  revoked,  and  the  property 

Bowers  v.  Bowers,  53  Ind.  430.  of  the  decedent  must  descend  accord- 

"''  Morse  v.  Morse,  42  Ind.  365.     In  ing  to  the  statute  of  descents, 

this  case  it  was  held  that  the  birth  of  ^  Davis  v.  Fogle,  124  Ind.  41,  23  N. 

such  child,  without  a  provision  for  it  E.  860,  7  L.  R.  A.  485n. 

in  the  will  revokes  the  will,  and  that  ""  Baldwin  v.  Spriggs,  65  Ind.  Z12>,  5 

while  such  child  lives,  the  will  is  to  Atl.  295. 


§  483  EXECUTION,    REVOCATION    AND    PROBATE.  835 

shown  in  the  preceding  section,  in  case  such  child  should  die  with- 
out issue,  however,  it  is  further  provided. 

"But  in  case  such  child  dies  without  issue,  and  the  wife  of 
such  testator  be  living,  the  estate  of  the  testator,  except  the  wife's 
interest  therein,  shall  descend  according  to  the  terms  of  the  will ; 
and  in  case  of  the  death  of  the  wife,  and  also  the  child,  without 
issue,  the  whole  of  such  estate  shall  descend  as  directed  in  the 
will  unless  such  child  have  a  wife  living  at  his  death,  in  which 
case  such  wife  shall  hold  such  estate  to  her  use  so  long  as  she  re- 
mains unmarried.'"'^ 

It  is  not  the  intention  of  this  section  of  the  statute  to  hold  the 
matter  of  the  revocation  of  the  will  provided  for  in  the  preceding 
section,  in  abeyance  until  the  death  of  the  child  without  issue ;  but 
it  simply  provides  a  method  of  descent  for  the  property  of  the 
testator  in  case  such  child  should  die  without  issue.*'* 

§  483.  When  marriage  a  revocation. — The  statute  pro- 
vides that  "after  the  making  of  a  will  by  an  unmarried  woman, 
if  she  shall  marry,  such  will  shall  be  deemed  revoked  by  such 
marriage."®^ 

This  statute  applies  as  well  to  a  second  or  subsequent  marriage 
of  a  woman  as  to  her  first  marriage.*'® 

The  statute  does  not,  however,  apply  to  a  man,  the  common- 
law  rule  that  mere  marriage  on  his  part  did  not  revoke  a  previous 
will  made  by  him  remains  unchanged.®' 

"'  Burns'  R.  S.  1908,  §  3117.  will  is  made  revokes  it.     To  this  view 

"  Morse  v.  Morse,  42  Ind.  365.  we  do  not  agree.    Our  statute  2  G  and 

«^  Burns'  R.  S.  1908,  §  3118.  H.  552,  §§  3,  4  and  5,  and  §  19,  p.  555, 

*°Vail  v.  Lindsay,  €]  Ind.  528.  provides  what  acts  shall  operate  as  a 

"  Bowers  v.  Bowers,  53  Ind.  430.  In  revocation  of  a  will,  and  marriage  of 

this  case  the  court  saj's :     "It  is  ad-  the  testator  is  not  one  of  them,  and 

mitted  on  both  sides,  and  authorities  we  hold  that  the  common  law  on  this 

are  cited,  that  at  common  law,  a  mere  point  is  not  changed  by  statute.     The 

marriage  did  not  revoke  a  will,  but  fifth  section  cited  above,  revokes  the 

that    marriage    and    legitimate    issue  will  of  an  unmarried  woman,  if  she 

were  necessary  to  revoke  a  will.     It  is  shall  marrj',  but  it  does  not  apply  to  a 

claimed  that  our  statute  has  changed  man." 

this  rule,  and  that  a  marriage  after  the 


8^6  INDIANA    PROBATE    LAW.  §  484 

The  common-law  rule  that  marriage  alone  does  not  revoke  the 
previous  will  of  a  man  is  not  changed  in  this  state.'''' 

It  has  been  held  that  the  execution  of  an  ante-nuptial  agreement 
by  a  woman  in  contemplation  of  marriage,  by  the  terms  of  which 
she  was  to  retain  the  right  to  the  absolute  control  and  disposition 
of  her  separate  property,  so  operated  as  to  prevent  a  revocation 
of  a  will  made  by  her  previous  to  her  marriage,  even  where  such 
agreement  was  executed  after  the  execution  of  the  will.'^'' 

It  is  not  the  marriage  of  every  woman  which  operates  to  re- 
voke a  will  previously  made  by  her.  It  is  where  the  will  has  been 
made  by  an  unmarried  woman  that  such  revocation  occurs.  If  a 
will  is  made  by  a  married  woman  who  is  afterwards  divorced,  or 
becomes  a  widow  and  marries  again  such  will  is  not  thereby 
revoked.^" 

§  484.  What  is  not  deemed  a  revocation. — "An  incum- 
brance upon  any  estate  shall  not  be  deemed  a  revocation  of  any 
devise  of  such  estate  previously  executed,  but  the  devises  and 
legacies  relating  thereto  shall  be  subject  to  such  incumbrance."'^^ 

"When  any  testator,  after  making  his  will,  shall  execute  a  con- 
tract for  the  conveyance  of  any  property  devised  in  such  will,  and 
any  part  of  the  purchase  money  remains  unpaid,  such  conveyance 
shall  not  be  deemed  a  revocation,  unless  it  shall  appear  from  such 
contract  to  have  been  so  intended ;  and  a  remedy  for  specific  per- 
formance may  be  had  against  the  devisees  by  the  persons  entitled 
thereto  by  virtue  of  the  contract,  and  the  purchase  money  due  on 
such  contract,  when  recovered  by  the  executor,  shall  be  paid  to 
the  devisees."^^ 

The  statute  further  provides  that:  "If,  after  having  executed 
a  will  devising  any  property,  any  testator  shall  make  a  convey- 
ance of  his  interest  therein,  and  shall  take  back  a  new  estate 
therein,  such  new  estate  shall  pass,  by  his  will,  to  the  person  to 

"« Bowers  v.  Bowers,  53  Ind.  430.  153  N.  Y.  416,  47  N.  E.  817,  60  Am. 

"»  Stewart  v.  Mulholland,  88  Ky.  38,     St.  664. 
10  S.  W.  125,  21  Am.  St.  320.  "  Burns'  R.  S.  1908,  §  3120. 

'"Hibbard  v.   Trask,    160  Ind.   498,        "Burns'  R.   S.   1908,   §   3119.     Bel- 
67  N.  E.  179;  In  re  McLarney's  Will,     shaw  v.  Chitwood,  141  Ind.  377,  40  N. 

E.  908. 


§  484  EXECUTION,    REVOCATION    AND    PROBATE.  83/ 

whom  the  original  estate  or  interest  was  devised,  unless  it  shall 
appear  from  such  will,  or  by  the  conveyance  of  his  estate  or  in- 
terest therein,  or  by  the  instrument  by  the  force  of  which  such 
new  estate  is  taken  back,  that  the  testator  intended  that  such  con- 
veyance should  operate  as  a  revocation  of  such  devise."" 

By  the  common  law  any  alienation  of  land  by  the  testator, 
after  the  execution  of  a  will  devising  such  land,  operated  as  a 
revocation  of  the  devise.  The  law  required  that  the  same  interest 
which  the  testator  had  in  the  land  when  he  made  the  will  should 
remain  unaltered  to  the  time  of  his  death.  The  least  alteration 
of  such  interest  amounted  to  a  revocation  of  the  will.'* 

This  statute  makes  a  material  change  in  the  common-law  rule, 
and  under  it  the  conveyance  of  the  land  devised  is  not,  of  itself, 
an  act  of  revocation.  The  devise,  by  necessary  implication,  is  re- 
voked, while  the  title  of  the  land  conveyed  remains  out  of  the 
testator;  but  any  reconveyance  of  the  land  to  the  testator  which 
would  vest  the  title  thereto  in  him  at  the  time  of  his  death,  as  it 
was  at  the  execution  of  the  will,  would  restore  the  operative 
power  of  the  will  over  the  land  devised."^^ 

An  invalid  deed  of  conveyance  has  no  effect  to  revoke  a  pre- 
vious devise  of  the  same  land.'"    A  valid  conveyance  of  real  es- 

'^  Burns'  R.  S.  1908,  §  3121.    One  of  "M    Kent.     Com.,    530;     Bowen    v. 

the  clauses  of  a  will  directed  that  the  Johnson,    6    Ind.    110,    61    Am.    Dec. 

residue  of  the  testator's   real   estate,  110:      Woolery      v.      Woolery,      48 

not  theretofore  disposed  of,  should  go  Ind.    523.     Where    a    given    number 

to  his  two  sons  share  and  share  alike,  of     acres,     to     be     taken     from     a 

while  the  last  clause,  (contained  in  a  tract    of    land,    are    devised    by    one 

codicil)    declared  that  all  the  residue  clause  of  a  will  to  A,  and  by  another 

of  his  estate,  not  therein  specifically  the  remainder  is  devised  to  B  and  C, 

devised,  should  go  to  all  his  children  the  modification  of  the  devise  to  A  by 

share  and  share  alike.     The  codicil  re-  a  codicil  subsequently  executed  dimin- 

ferred  to  revoked  certain  devises  and  ishing  it,  the  devise  to  B  and  C  being 

bequests,  but  made  no  disposition  of  left  unchanged,  adds  nothing  to  that 

real    estate,    except    in    the    residuary  to   B   and   C.     Sturgis  v.   Work,   122 

clause.     Held,  that  the  codicil  controls  Ind.  134,  22  N.  E.  996,  17  Am.  St.  349. 

the  disposition  of  the  undisposed  res-  "^Redfield  Wills,  p.  32,7;  Woolery  v. 

idue.     Sturgis  v.  Work,  122  Ind.  134,  Woolery,  48  Ind.  523. 

22  N.  E.  996,  17  Am.  St.  349.  ''  Bennett  v.  Gad<iis,  79  Ind.  347. 


838 


INDIANA    PROBATE    LAW. 


48: 


tate,  however,  operates  to  annul  that  portion  of  the  will  relating 
thereto.'' 

§  485.  Effect  of  a  partial  divesting  of  title. — By  statute  it 
is  provided  that :  ''A  conveyance,  settlement,  deed,  or  other  act 
of  a  testator,  by  which  his  estate  or  interest  in  property  previ- 
ously devised  by  him  shall  be  altered  but  not  wholly  divested, 
shall  not  be  deemed  a  revocation  of  such  devise,  but  the  same 
shall  pass  to  the  devisee  or  legatee  the  actual  estate  or  interest 
of  the  testator  which  would  otherwise  descend  to  his  heirs,  un- 
less such  devise  shall  otherwise  be  revoked,  or  unless  in  the  in- 
sti-ument  by  which  such  alteration  is  made  the  intention  is  de- 
clared that  it  shall  operate  as  a  revocation  of  such  previous  de- 
vise; but  if  in  any  case  the  provisions  of  the  instrument  by  which 
such  alteration  is  made  are  wholly  inconsistent  with  the  terms  and 
nature  of  such  previous  devise,  such  instrument  shall  operate  as 
a  revocation  thereof,  unless  such  provisions  depend  on  a  condi- 
tion or  contingency,  and  such  condition  be  not  performed  or  such 
contingency  do  not  happen."^® 


"  Simmons  v.  Beazel,  125  Ind.  362, 
25  N.  E.  344.  In  this  case  the  court 
says :  "The  testator  was  at  liberty  to 
dispose  of  his  property,  real  and  per- 
sonal, notwithstanding  his  will.  When 
he  disposed  of  the  real  estate,  or  any 
of  it,  the  portions  of  the  will  relating 
thereto  were  annulled;  the  conditions 
were  the  same  as  they  would  have 
been  had  such  real  estate  not  been 
mentioned  therein." 

'^  Burns'  R.  S.  1908,  §  3122.  A  will 
is  not  revoked  by  an  invalid  convey- 
ance subsequently  made  by  the  testa- 
tor. Bennett  v.  Gaddis,  79  Ind.  347. 
By  a  will,  eighty-eight  acres  of  land 
of  which  the  testator  was  seized  at  the 
date  of  the  will,  was  devised  to  his 
son,  J,  and  thirty-six  acres  to  his 
grandson  N.  Subsequently  the  testa- 
tor conveyed  by  deed  to  J  for  life,  re- 
mainder in  fee  to  J's  children,  sixty 
acres  of  the  same  land  and  to  N  forty 


acres,  leaving  twenty-four  acres, 
being  part  of  the  thirty-six  acres 
devised  to  N,  undisposed  of  by 
deed.  Held,  that  these  deeds  did  not 
revoke  the  devise  of  the  twenty-four 
acres  to  N.  Swails  v.  Swails,  98  Ind. 
511.  In  Belshaw  v.  Chitwood,  141  Ind. 
Zn,  40  N.  E.  908,  it  is  said:  "Are 
facts  found  upon  which  to  determine 
the  issue  of  the  revocation  of  the  will? 
It  is  not  claimed  that  the  mere  execu- 
tion of  a  deed  to  a  devisee  of  a  part 
of  the  land  devised,  will  work  a  revo- 
cation of  the  will.  Here  it  is  found 
that  the  deed  was  supported  by  a  val- 
uable consideration,  and  it  is  certainly 
not  indicative  of  an  intention  to  re- 
voke a  devise,  which  in  its  nature  only 
takes  effect  upon  the  death  of  the  tes- 
tatrix, that  the  testatrix,  for  a  consid- 
eration, parted  with  a  fraction  of  the 
land  covered  by  the  devise,  and  per- 
mitted the  devisee  to  enjoy  the  same 


§  486  EXECUTION,    REVOCATIOX    AND    PROBATE.  839 

Construing  this  section  of  the  statute,  the  Supreme  Court  says : 
"The  object  intended  to  be  accompHshed  is  to  prevent  a  partial 
alienation  from  destroying  the  devise,  except  in  cases  where  the 
purpose  of  the  testator  to  give  that  eftect  to  the  alienation  is 
manifested,  or  where  the  provision  by  which  the  alienation  is 
made  is  inconsistent  with  the  terms  or  nature  of  the  devise.  It 
is  clear  that  it  is  not  every  alteration  in  the  estate  of  the  testator 
in  the  property,  nor  every  partial  alienation,  that  will  revoke  the 
devise.  "^^ 

This  statute  is  also  in  derogation  of  the  common-law  rule 
noted  above. 

§  486.  Republication  of  wills. — A  will  which  has  become 
inoperative  by  reason  of  its  revocation,  may,  at  any  time  there- 
after, if  the  testator  remains  competent  to  make  a  will,  be  re- 
vived and  re-adopted  by  him  and  restored  to  its  original  validity. 
Such  republication  or  revival  of  the  revoked  will  is,  in  effect, 
the  making  a  new  one,  and  for  this  reason  the  same  competency 
and  the  same  formalities  are  necessary  in  the  republication  of 
an  old  will  as  in  the  execution  of  a  new  one.""  As  has  been 
sliown*^  a  codicil  may  have  the  effect  to  republish  and  re-establish 
a  void  or  revoked  will. 

The  republication  of  a  will  being  equivalent  to  the  making  of 
a  new  will,  its  eff"ect  is  to  bring  the  will  down  to  the  time  when 
it  is  republished  and  it  will  speak  from  that  date.*-  And  its 
operation  will  extend  to  property  acquired  and  matters  which 
have  arisen  between  the  original  date  of  the  will  and  the  time 
of  its  republication.-^  A  will  executed  under  undue  influence  may 
be  validated  by  a  codicil  republishing  and  confirming  the  will  at 
a  time  when  the  testator  is  free  from  such  influence.^* 

before  the  will  became  effective.     It  *^  Ante,  §  465. 

is  expressly  found  that  in  the  execu-  ^"Wood  v.  Hammond,  16  R.  I.  98, 

tion  of  the  deed  there  was  no  inten-  17    Atl.    324,    18    Atl.    198;    Hawk  v. 

tion  to  substitute  the  grant  for  the  full  Enyart,  30  Xeb.  149,  46  N.  W.  422,  27 

devise."  Am.  St.  391. 

"  Swails  V.  Swails.  98  Ind.  511 ;  Sim-  *=  Williams  Exrs.,  218. 

mons  V.  Beazel,  125  Ind.  362,  25  N.  E.  **  O'Xeall  v.  Parr,  1  Rich.  (S.  Car.) 

344.  80. 

'"Barker  v.  Bell,  46  Ala.  216;  Will- 
iams' Exrs.  205. 


S4O  INDIANA  PROBATE  LAW.  §  487 

§  487.  Probate  of  wills.— Before  a  will  can  have  any  force 
or  legal  validity  it  must  be  probated.  To  probate  a  will  means  to 
prove  before  some  officer  or  tribunal,  vested  by  law  with  author- 
ity for  that  purpose,  that  the  instrument  offered  to  be  proved  is 
the  last  will  and  testament  of  the  deceased  person  whose  testa- 
mentary act  it  is  alleged  to  be,  and  that  it  has  been  executed,  at- 
tested and  published  as  required  by  law,  and  that  the  testator 
was  of  sound  and  disposing  mind  at  the  date  of  its  execution.'^ 

It  is  not  necessary  that  a  specific  finding  be  entered  of  record 
of  each  of  the  elements  of  proof  made  in  probating  a  will."'  The 
probate  of  a  will  is  a  judicial  act  although  the  hearing  is  ex  parte 
in  character.^^ 

After  the  death  of  a  testator,  his  executor  or  any  other  person 
interested  may  propound  his  will  for  probate.  The  statute  pro- 
vides that,  "Upon  the  death  of  any  testator,  any  person  interested 
in  any  part  of  the  estate  specified  in  his  will  may  have  such  will 
proven  in  the  circuit  conrt  when  in  session,  or  before  the  clerk 
thereof  in  vacation. "^^ 

Where  the  will  is  propounded  for  probate  by  the  executor  in 
his  own  name,  any  other  person  who  has  an  interest  in  estab- 
lishing the  will,  has  a  right  to  inten^ene  and  be  made  a  party  to 
the  proceeding.^^ 

It  will  be  noticed  that  this  statute  authorizes  proceedings  to  be 
had  before  the  clerk  in  vacation.  Such  acts  as  the  clerk  may  per- 
form are  conditional  and  are  ministerial  in  character,  and  are 
subject  to  the  supervision  and  confinnation  of  the  court  in  term 
time,  and  its  order  confirming  the  acts  of  the  clerk  is  the  final 

^  Bouvier,  Law  Diet.,  Woerner  Am.  parte    probate    of    a    will    ascertains 

Law  Admin.,  §  214.  nothing  but  the  prima  facie  validity  of 

""  Baker  v.  Cravens,  150  Ind.  199,  49  the  instrument,  and  that  it  is   seem- 

N.  E.  1054.  ingly  what  it  purports  to  be  on   its 

"^Blanchard  v.  Wilbur,  153  Ind.  387,  face.     Burns  v.  Travis,  117  Ind.  44,  18 

55  N.  E.  99.    A  will  has  no  efifect  un-  N.  E.  45. 

til  it  has  been  probated,  and  until  then  ^  Burns'  R.  S.  1908.  §  3135. 

it  cannot  be  used  in  evidence.     Hop-  ^"Foster  v.  Foster,  7  Paige  N.  Y.) 

kins  V.   Quinn,  93  Ind.  223.     The  ex  48. 


§  487  EXECUTION,    REVOCATION    AND    PROBATE.  84I 

act  in  the  probate  of  the  will  and  relates  back  to  the  time  when 
the  will  was  lodged  with  the  clerk  for  probate."*' 

No  formal  petition  for  the  probate  of  a  will  is  required,  an 
oral  motion  is  sufficient."  But  this  does  not  dispense  with  the 
necessity  of  proof  upon  all  the  points  essential  to  show  the  due- 
execution  and  validity  of  the  instrument  offered  for  probate;  and 
the  burden  is  on  those  proposing  the  will  for  probate  to  prove 
not  only  the  due  execution  thereof,  but  also  the  testamentary  ca- 
pacity of  the  testator. "- 

The  admission  of  a  will  to  probate  in  a  case  where  the  court 
has  jurisdiction  is  a  judicial  act,  and  like  other  valid  judgments 
cannot  be  collaterally  impeached.®^  If  the  order  of  probate  is  not 
vacated  in  an  appropriate  proceeding  within  the  time  allowed  by 
the  statute,  it  becomes  unimpeachable  and  conclusive,  except  as  to 
persons  at  the  time  under  some  legal  disability.^* 

Under  the  statute,  any  devisee  or  other  person  interested  in 
the  estate  of  a  testator  may  have  the  will  probated.®^ 

The  statute  fixes  no  time  within  which  a  will  shall  be  produced 
for  probate.  In  the  absence  of  any  limitation,  a  will  would  be 
entitled  to  be  proven  and  probated  at  any  time  after  the  death 
of  the  testator.  The  general  effect  of  a  will  probated  after  a  long 
lapse  of  time  would,  of  course,  be  modified  by  the  peculiar  facts, 
circumstances  and  conditions  of  the  particular  case.  Inexcusable 
negligence  or  laches  in  the  production  and  probate  of  a  will 
should  not  prevail  against  interests  and  titles  which  have  become 
vested  under  a  belief  that  the  estate  was  an  intestate  one.    The 

»«  Blanchard  v.  Wilbur,  153  Ind.  387,  ''  Winslow  v.  Donnelly,  119  Ind.  565, 

55  N  E  99  22  N.  E.  12. 

"^  Miller  V.  Coulter,  156  Ind.  290,  59  ^  Putt  v.  Putt,  149  Ind.  30,  48  N.  E. 

K.  E.  853;  Steinkuehler  v.  Wempner,  356,    51    N.    E.   337;    Steinkuehler   v. 

169  Ind.  154,  81  N.  E.  482;  Veasey  v.  Wempner,  169  Ind.  154,  81  N.  E.  482; 

Day,  —  Ind.'—  94  N.  E.  481.  Bartlett  v.  Manor,  146  Ind.  621,  45  N. 

"=' Steinkuehler     v.     Wempner,     169  E.  1060. 

Ind.  154,  81  N.  E.  482;  Hoffbauer  v.  *' Stone     v.     Huxford,     8     Blackf- 

Morgan,'  172  Ind.  273,  88  N.  E.  337;  (Ind.)  452. 
IMcReynolds  v.  Smith,  172  Ind.  336,  86 
N.  E.  1009. 


842 


INDIANA    PROBATE    LAW 


§487 


right  to  have  the  will  probated,  however,  would  exist,  whatever 
might  be  its  effect."* 

By  the  English  practice,  and  by  the  practice  in  some  of  the 
states,  a  will  may  be  probated  in  either  the  common  form,  or 
solemn  fonn.  A  probate  in  the  common  form  is  where  the  will 
is  produced  before  the  proper  court  or  officer,  and  after  proof 
by  the  attesting  witnesses  of  the  validity  of  its  execution,  is  ad- 
mitted to  probate  without  notice  to  any  person  interested  therein. 
A  will  is  probated  in  solemn  form,  when  all  parties  interested 
have  been  duly  notified  to  appear  at  the  time  of  its  probate  and 
the  will  then  duly  proved  by  the  witnesses."' 

The  probate  in  this  state  is  a  very  simple  matter  and  is  made 
without  notice  after  the  common  form.  It  is  wholly  ex  parte,  and 
ascertains  nothing  but  the  prima  facie  validity  of  the  will,  and 
that  the  instrument  offered  is  what  it  purports  to  be.'"* 


'"Shumuay  v.  Holbrook,  1  Pick. 
(Mass.)  114,  11  Am.  Dec.  153;  Waters 
V.  Stickney,  12  Allen  (Mass.)  1,90  Am. 
Dec.  122n ;  Haddock  v.  Boston  &c.  R. 
Co.,  146  iMass.  155,  15  X.  E.  495,  4 
Am.  St.  295.  The  probate  of  a  former 
will  cannot  be  pleaded  in  estoppel  of 
an  application  to  admit  a  later  will  to 
probate,  unless  the  applicant  has  had 
such  a  connection  with  the  former 
will,  or  the  probate  proceedings  upon 
it,  as  to  estop  him  from  denying  its 
validity.  Burns  v.  Travis,  117  Ind. 
44,  18  N.  E.  45. 

"'  Brett  V.  Brett,  2  Addams  498 ;  Pal- 
mer V.  Dent,  2  Robt.  284;  Armstrong 
V.  Baker,  9  Ired.  (N.  Car.)  109;  Field 
V.  Apple  &c.  Driv.  Co.,  Q  Wis.  569, 
31  X.  W.  17;  Roberts  v.  Flanagan,  21 
Neb.  503,  32  N.  W.  563;  Petty  v. 
Ducker,  51  Ark.  281,  11  S.  W.  2;  In  re 
Middleton,  72  Iowa  424,  34  N.  W.  193 ; 
Roy  v.  Segrist,  19  Ala.  810 ;  Martin  v. 
Perkins,  56  Miss.  204;  George  v. 
George,  47  X.  H.  27 ;  Xoyes  v.  Barber, 
4  X.  H.  406.  Where  no  contest  is 
pending,  express  proof  of  the  capac- 


ity of  the  testator  to  make  a  will  and 
of  his  freedom  from  coercion  is  not 
required  by  the  statute.  In  the  ab- 
sence of  proof,  these  things  will  be 
presumed.  In  the  absence  of  a  con- 
test, proof  of  the  genuineness  of  the 
signatures  of  the  attesting  witnesses, 
and  that  they  are  dead,  or  are  non- 
residents of  the  state,  or  cannot  be 
found,  and  that  they  attested  at  the 
testator's  request  and  in  his  presence, 
and  that  one  of  them  signed  the  testa- 
tor's name  at  his  request,  and  that  the 
subscribing  witnesses  in  person  wrote 
their  own  names  in  his  presence,  is 
sufficient.  Herbert  v.  Berrier,  81 
Ind.  1. 

"'  Burns  v.  Travis,  117  Ind.  44,  18  X. 
E.  45;  Ex  parte  Fuller,  2  Story  (U. 
S.)  327.  It  is  proper  to  join  with  an 
application  for  the  admission  of  a 
later  will  to  probate,  a  demand  that 
the  probate  of  a  former  will  be  set 
aside.  Burns  v.  Travis,  117  Ind.  44, 
18  X".  E.  45.  Query,  whether  the  rec- 
ord of  the  probating  of  a  will  has  the 
effect  of  an  ordinary  judgment,  and  is 


§  488  EXECUTION,    REVOCATION    AND    PROBATE.  843 

By  the  English  practice  also  a  part  of  a  will  offered  might  be 
admitted  to  probate,  and  probate  refused  on  other  parts  ;^''  but 
this  practice  does  not  prevail  in  this  state,  and  the  whole  will  is 
admitted  to  probate  without  any  reservation  of  the  void  or  illegal 
portions  of  it.  The  probate  is  confined  to  the  question  as  to 
whether  the  will  has  been  legally  executed,  and  is  the  will  of  the 
testator.'- 

If  the  instrument  appears  to  have  been  signed  and  attested  in 
the  manner  prescribed  by  the  statute,  and  if  no  objection  is  made, 
the  proof  of  its  execution  should  be  heard,  and  if  satisfactory, 
an  order  should  be  made  admitting  it  to  probate,  and  the  certifi- 
cate of  probate  should  be  indorsed  upon  or  attached  to  the  will.^ 

§  488.  Objections  to  probate. — The  uncontested  probate 
of  a  will  in  this  state  is  wholly  ex  parte  and  the  judgment  or  or- 
der of  the  court  thereon  establishes  prima  facie  the  validity  of 
the  will,  and  being  equivalent  to  what  was  called  probate  in  com- 
mon form  under  the  English  practice.  But  where  the  probate  is 
contested  it  then  takes  on  a  similarity  to  the  solemn  form  of  pro- 
bate in  which  all  parties  interested  were  required  to  be  notified. 
The  right  to  object  to  the  probate  of  a  will  in  this  state  is  purely 
statutor>-,  and  the  statute  must  be  followed  or  the  right  fails. 
The  statute  is  as  follows :  If,  prior  to  the  admission  of  any  will 
to  probate  before  the  clerk  of  the  circuit  court,  objection  thereto, 
in  writing,  verified  by  his  affidavit  alleging  that  the  same  is  not 
made  for  vexation  or  delay,  be  filed  by  any  person  with  such  clerk, 
he  shall  continue  the  same  until  the  succeeding  term  of  court, 
when,  if  the  person  contesting  such  will  fail  to  resist  the  probate 
thereof,  the  judge  of  such  court  may  admit  such  will  to  probate : 
but  if  such  objection  be  made  before  such  court,  reasonable  time 
shall  be  allowed  the  party  making  the  same  to  resist  the  probate 

of  such  will.^ 

conclusive  as  to  the  due  execution  of  '  Hegarty's  Appeal,  75  Pa.  St.  503 ; 

the  will,  except  in  an  action  under  the  Bent's  Appeal,  35  Conn.  523 ;  George 

statute,  to  contest  its  validity.     Lange  v.  George,  47  N.  H.  27. 

V.   Dammier,   119  Ind.   567,  21   N.  E.  ^Miller  v.  Coulter,  156  Ind.  290,  59 


749. 


N.  E.  853. 


Allen   V.   MTherson,    1   H.  of   L.         ^  Burns' R.  S.  1908,  §  3153. 
191 ;  Plume  v.  Beale,  1  P.  Wm.  388. 


844  INDIANA    PROBATE    LAW.  §  488 

The  proceeding  contemplated  by  this  statute  must  be  com- 
menced before  the  alleged  will  has  been  admitted  to  probate.  The 
objections  to  its  probate  are  properly  filed  at  or  after  the  time 
when  such  will  is  offered  for  probate.  If  the  objector  stands  by 
his  objections  at  the  succeeding  term  of  court,  the  proceeding 
assumes  the  form  of  an  adversary  one,  and  differs  little,  if  any, 
from  any  action  regularly  begun  to  contest  the  validity  of  the 
will.  In  either  case  it  raises  the  question  of  the  validity  of  the 
will.  On  this  point  the  Supreme  Court  has  said  :  "In  the  first 
class  the  contest,  if  successful,  prevents  the  probate,  while  in  the 
last  it  revokes  it.  It  attaches  itself  to  and  becomes  part  of  the 
proceedings  of  the  probate,  so  that  if  the  will  has  been  previously 
admitted  to  probate,  the  court  takes  judicial  notice  of  the  fact; 
if  it  has  not  been  admitted  the  judgment  rests  without  action  un- 
til the  will  is  offered  for  probate,  if  it  has  not  been  offered."* 

Objections  to  the  probate  of  a  will  must  be  made  in  writing, 
and  verified  by  affidavit  that  they  are  not  made  for  vexation  or 
delay.^  And  where  objections  are  properly  made  the  burden  is  on 
the  proponent  of  the  will  to  establish  the  due  execution  of  the 
will,  but  also  the  testamentary  capacity  of  the  testator  at  the  time 
of  executing  the  instrument.  The  presumption  of  law  in  favor 
of  sanity  does  not  in  such  case  shift  the  burden  of  proof.® 

^  Curry  v.  Bratney,  29  Ind.  195.  testator   was   of   unsound   mind,   that 

'"  Miller  v.  Coulter,  156  Ind.  290,  59  the  will  was  unduly  executed,  that  it 

N.  E.  853.  was    executed   under   duress,    or   was 

^  Steinkuehler  v.  Wempner,  169  Ind.  obtained  by  fraud,  or  upon  any  other 

154,  81  N.  E.  482;  Miller  v.  Coulter,  ground  of  contest.     At  the  conclusion 

156  Ind.  290,  59  N.   E.  853.     In  this  of  the  evidence  for  the  contestor,  he 

case  the  trial  judge  was  of  the  opinion  held  that  the  proponents   of   the  in- 

that  the  proponents  of  the  will  were  strument    might    rebut    the    evidence 

required,  in  the  first  instance,  to  make  given    for   the   contestors.     This   was 

a  prima  facie  case  only,  by  proving  the  order  of  the  introduction  of  the 

that  the  testator  signed  the  instrument  evidence,  and  we  are  not  prepared  to 

in  question  as  his  last  will  and  testa-  say  that  it  was  not  the  correct  prac- 

ment,  that  he  was  of  full  age,  and  that  tice.     The    fact    that    some    evidence, 

the  execution  of  the  instrument  was  which  might  have  been  introduced  in 

duly  attested  by  two  witnesses;   and  rebuttal,  was  given  in  chief,  was  not 

that   after    such   proof   the    contestor  a   serious    error.     Harrison   v.    Boyd, 

had  the  right  to  assail  the  execution  —  Ind.  — ,  96  N.  E.  587. 
of  the  instrument  by  showing  that  the 


§  488  EXECUTION,    REVOCATION    AND    PROBATE.  845 

If  any  person  has  contested  the  validity  of  any  will  under  the 
provisions  of  the  above  section  of  the  statute,  and  his  objections 
have  not  been  sustained,  and  the  will  has  been  established  and  ad- 
mitted to  probate,  he  will  be  estopped  from  afterward  proceeding 
to  contest  such  will  after  its  probate/ 

And  the  probate  of  a  former  will  cannot  be  pleaded  in  bar  of 
an  application  to  admit  a  later  will  to  probate,  unless  the  appli- 
cant has  had  such  a  connection  with  the  former  will,  or  the  pro- 
bate proceedings  upon  it  as  would  estop  him  from  denying  its 
validity.^ 

If  the  proponent  fails  to  prove  what  he  affirms  by  a  prepon- 
derance of  the  evidence  the  instrument  will  be  rejected  as  a  will. 
If  he  succeeds  it  will  be  admitted  to  probate,  not  as  a  prima  facie 
will,  but  as  an  absolute  verity  in  so  far  as  the  parties  to  the  pro- 
ceeding are  concerned.^  That  objections  to  the  probate  of  a  will 
filed  by  one  are  pending,  is  no  bar  to  the  filing  of  objections  by 
another  party,  and  the  dismissal  of  the  first  objections  will  not 
affect  proceedings  on  the  latter.^" 

The  rule  that  an  action  is  commenced  only  when  a  complaint 
is  filed  and  process  issued  thereon  applies  to  a  proceeding  to 
contest  the  probate  of  a  will.  In  such  proceeding  all  parties  bene- 
ficially interested  under  the  will  are  entitled  to  notice,  and  if  they 
are  not  sei-ved  with  notice  of  such  contest,  they  have  the  right, 
upon  proof,  to  have  the  will  probated  in  spite  of  the  objections 
filed."  But  where  formal  proof  of  the  execution  of  a  will  was 
presented  to  the  court  and  before  the  order  admitting  the  will 
to  probate  objections  were  filed,  such  objections  are  in  time.^^ 

•Duckworth  v.   Hibbs,  38  Ind.  78;  "  :\IcGeath  v.  Starr,  157  Ind.  320,  61 

FilHnger  v.   Conley,   163  Ind.  584,  72  N.  E.  664. 

N.  E.  597 :  Clearspring  Tp.  v.  Blough,  "  Towles  v.  McCurdy,  163  Ind.  12,  71 

173  Ind.  15,  88  N.  E.  511 ;  89  N.  E.  X.  E.  129.    "The  failure  of  the  appel- 

359  lants  to  demand  that  the  court  should 

*  Burns  v.  Travis,  117  Ind.  44,  18  N.  act  upon  the  proofs,  and  admit  the 
■£  45_  will  to  probate  when  it  was  presented, 

*  Morell  V.  Morell,  157  Ind.  179,  60  and  their  apparent  acquiescence  in  the 
N.  E.  1092.  subsequent  delay,  authorized  the  filing 

"  McGeath  v.  Starr,  157  Ind.  320,  61  of  objections  to  the  probate  of  the 
N.  E.  664.  will   while  the  proceedings   remained 


846 


INDIANA    PROBATE    LAW. 


§488 


Where  the  probate  of  a  will  was  resisted  on  the  grounds  of  in- 
sanity, undue  influence,  and  undue  execution  the  testimony  of 
the  physician  who  attended  the  testator  is  incompetent  as  to  com- 
munications made  to  him  by  the  patient,  or  facts  leamed  by  him 
in  the  course  of  his  business  as  such  physician. ^^ 

Any  person  interested  may  resist  the  probate  of  a  will,  and  the 
executor  named  in  the  will  is  a  necessar}-  party.  Such  executor 
has  power  to  bind  the  estate  of  the  testator  for  the  payment  of 
attorney  fees  incurred  by  him  in  resisting  a  suit  contesting  the 
probate  of  the  will.^* 

he  is  tlie  only  person  who  can  in  the 
first  instance  properly  prove  the  same.' 
3  Redficld,  Wills,  8.     In  Henderson  v. 
Simmons,  (1858)  33  Ala.  291,  299  [70 
Am.  Dec.  590]  it  was  said :     'It  is  the 
privilege,    if    not    the    duty,    of    one 
named   as   executor   of   a  paper  pur- 
porting to  be  a  last  will  and  testament 
to    propound    it    for   probate.     If    he 
have    no    knowledge    or    reasonable 
grounds  on  which  to  predicate  a  well 
grounded  suspicion  against  the  legal- 
ity of  the  will,  and  propound  the  pa- 
per in  good  faith,  he  but  carries  out 
the  intention  with  which  he  was  ap- 
pointed.    Any    reasonable    costs    and 
expenses  incurred  by  him  in  the  hon- 
est endeavor  to  give  effect  to  the  will, 
is  a  proper  charge  on  the  estate  in  his 
hands.'     See,  also.  Baker  v.  Cauthorn 
(1900),  23  Ind.  App.  611,   [55  N.  E. 
963,  n  Am.  St.  443] ;  Wills  v.  Sprag- 
gins,    (1847),    3    Gratt.    (Va.)    555; 
Bradford  v.  Boudinot  (1811),  3  Wash. 
C.  C.  122;  Lassiter  v.  Travis  (1897), 
98  Tenn.  330,  39  S.  W.  226 ;  Hazard  v. 
Engs,   (1882),  14  R.  I.  5 ;  Mathis  v. 
Pitman  (1891),  32  Xeb.  191,  49  N.  W. 
182;  In  re  Estate  of  Soulard  (1897), 
141  Mo.  642,  43  S.  W.  617.     In  hold- 
ing that  it  was  the  duty  of  the  exec- 
utor to  propound  the  paper  which  he 
supposed   was   the   will,   and  that  he 
was    entitled   to    recover   his   counsel 


in  that  situation.  It  is  also  to  be  ob- 
served that  the  appellants  made  no  ob- 
jection to  the  filing  of  the  statement 
of  the  grounds  of  contest  of  the  will, 
and,  having  failed  to  interpose  any 
objection  at  that  time,  they  could  not 
afterwards  be  heard  to  say  that  the 
statement  was  not  filed  within  the 
time  fixed  by  the  statute.  The  motion 
to  set  aside  the  submission  of  this 
cause  and  to  admit  the  will  to  probate 
was  properly  overruled." 

"Towles  v.  :McCurdy,  163  Ind.  12, 
71  N.  E.  129;  Brackney  v.  Fogle,  156 
Ind.  535,  60  N.  E.  303;  Thompson  v. 
Ish,  99  Mo.  160,  12  S.  W.  510,  17  Am. 
St.  552n;  Winters  v.  Winters,  102 
Iowa  53,  71  X.  W.  184,  63  Am.  St. 
428;  Hageman  Priv.  Com.,  §  86. 

"  Fillinger  v.  Conley,  163  Ind.  584, 
11  X.  E.  597.  "We  find  it  laid  down 
by  Blackstone  that  'the  executor  or 
the  administrator  durante  minora 
setate,  or  durante  absentia,  or  cum 
testamento  annexo,  must  prove  the 
will  of  the  deceased ;  which  is  done 
either  in  common  form,  which  is  only 
upon  his  own  oath  before  the  ordi- 
nary or  his  surrogate,  or  per  testes,  in 
more  solemn  form  of  law,  in  case  the 
validity  of  the  will  be  disputed.'  2 
Blackstone's  Comm.,  508.  Judge  Red- 
field  says :  'The  executor  is  presumed 
to  have  the  custody  of  the  will,  and 


488 


EXECUTION,    REVOCATION    AND    PROBATE. 


847 


In  proceedings  to  contest  the  probate  of  a  will  brought  before 
such  will  has  been  admitted  to  probate,  the  contestor  is  not  re- 
quired to  file  a  bond.^^ 

While  it  is  held  that  one  who  has  appeared  and  resisted  the 
probate  of  a  will  is  concluded  from  afterwards  contesting  such 
will,  yet  a  distinction  is  drawn  between  actions  resisting  probate 
and  contesting  wills,  and  those  brought  for  the  purpose  of  having 
the  will  or  some  particular  provision  of  it  construed.  Parties  to 
the  former  class  of  actions  are  not  precluded  from  bringing  the 
latter.'' 


fees  incurred  in  the  preliminary  con- 
test, the  Supreme  Court  of  Missouri, 
in  the  case  last  cited,  said :  'An  exec- 
utor represents  his  testator,  not  only 
in  executing  the  will  after  its  probate, 
but  in  having  it  probated.  He  is  ap- 
pointed on  account  of  the  confidence 
reposed  in  him  and  it  is  his  duty  to 
do  everything  necessary  to  carry  it 
into  execution.  This  duty  includes 
that  of  propounding  the  will  for  pro- 
bate, for  it  cannot  be  executed  until 
it  has  been  properly  adjudged  to  be 
the  will  of  the  testator.  The  exec- 
utor acts,  not  only  in  the  capacity  of 
a  trustee  of  the  estate,  but  he  repre- 
sents the  testator  in  carrying  out  his 
will.  It  is  therefore  clearly  the  duty 
of  an  executor  to  obtain  for  the  will 
in  the  first  instance  the  sanction  of 
the  law  which  is  necessary  to  make  it 
effective.  In  performing  that  duty  he 
acts  in  the  capacity  of  a  representa- 
tive of  his  testator,  and  should  of 
right  be  reimbursed  out  of  the  estate 
for  all  expenses  incurred  in  good 
faith  in  the  discharge  of  his  duty, 
whether  the  will  be  established  or  re- 
jected. That  the  advice  and  services 
of  attorneys  are  proper  items  of  ex- 
pense in  the  first  probate  of  the  will, 
cannot  reasonably  be  doubted.'  " 
"  Blanchard  v.  Wilbur,  153  Ind.  387, 


55  N.  E.  99 ;  Harrison  v.  Stanton,  146 
Ind.  366,  45  X.  E.  582. 

'"  Clearspring  Tp.  v.  Blough,  173 
Ind.  15,  88  N.  E.  511,  89  N.  E.  369. 
"Where  the  valid  provisions  of  a  will 
are  sufficient  to  carry  out  some  pur- 
pose of  the  testator,  and  are  not  so  in- 
terwoven with  invalid  provisions  that 
the  entire  will  must  be  stricken  down, 
there  is  a  marked  difference  between 
resistance  to  the  probate  of  such  will, 
or  its  contest  after  probate,  and  the 
construction  of  the  provisions  there- 
of. If,  as  we  have  held  in  the  main 
opinion,  some  of  the  provisions  are 
valid,  it  must  follow  that  parties  can- 
not, in  the  suit  to  resist  probate,  have 
alleged  invalid  portions  of  a  will  con- 
strued. After  probate,  they  may 
raise  any  question  as  to  the  validity 
of  different  provisions,  under  the  well 
established  rule  that  the  doctrine  of 
former  adjudication  applies  only  in 
cases  in  which  matters  have  been,  or 
could  have  been  determined  under  the 
issues  formed,  as  determined  by  the 
pleadings.  We  think  it  very  clear  that 
upon  an  issue  of  probate  or  contest 
of  a  will,  unless  the  instrument  is 
wholly  ineffective  for  any  purpose, 
nothing  can  be  determined  except  the 
question  of  probate  or  contest  to  set 
aside  the  will  and  probate.     Such  pro- 


848 


INDIANA    PROBATE    LAW 


§489 


§  489.  What  must  be  probated. — All  wills,  wTitten  or  oral, 
must  be  probated,  and  all  insliunieiits  of  a  testamentar}'  char- 
acter, which  contain  provisions  relating  to  the  disposition  of 
property,  either  real  or  personal,  after  the  death  of  the  maker.'^ 

A  codicil  should  be  probated,  even  though  it  contains  nothing 
but  the  revocation  of  a  former  will.''  So,  also,  if  properly  at- 
tested, must  a  deed  be  probated,'"  or  a  bill  of  exchange,  or  a 
promissory  note.*"  And  where  a  will  is  made  in  execution  of  a 
power  it  should  be  probated.-^  Also  a  paper  in  the  fonn  of  a 
power  of  attorney,  if  it  is  intended  to  operate  as  a  testamentary 
disposition  of  property. -- 

But  papers  which  are  not  testamentary  in  character,  although 
they  may  be  executed  and  attested  according  to  law,  need  not  be 
probated.-^ 

And  where  a  will  which  has  been  executed  in  due  form  refers 
to  some  paper  which  has  not  been  so  executed  as  containing  di- 


ccedings  have  no  effect  upon  the  right 
to  have  particular  provisions  con- 
strued, even  to  the  extent  of  striking 
them  down  entirely,  if  invalid." 

^'  Patterson  v.  EngHsh,  71  Pa.  St. 
454 ;  In  re  Wood's  Estate,  36  Cal.  75 ; 
Succession  of  Ehrenberg,  21  La.  Ann. 
280,  99  Am.  Dec.  729;  Johnson  v.  Yan- 
cey, 20  Ga.  707,  65  Am.  Dec.  646; 
Walker  v.  Jones,  23  Ala.  448;  Brown 
v.  Shand,  1  McCord  (S.  Car.)  409; 
Jackson  v.  Jackson,  6  Dana  (,Ky.) 
257;Wilbar  v.  Smith,  5  Allen  (Mass.) 
194;  Edwards  v.  Smith,  35  Miss.  197; 
In  re  Beebe,  20  Hun  (N.  Y.)  462.  In 
the  last  case  the  following  paper  was 
admitted  to  probate:  "After  my 
mother's  death  mj'  cousin  A  is  my 
heir.  This  writing  is  instead  of  a  for- 
mal will,  in  which  I  intend  to  make  B 
my  executrix."  Also  a  writing,  a 
bank  deposit  book,  which  directed  that 
all  moneys  deposited  by  the  testator, 
together  with  interest  thereon,  should, 
after  his  death,  be  paid  to  the  person 


named  in  such  writing,  if  not  other- 
wise disposed  of  by  will.  Armstrong's 
Estate,  2  Pa.  Co.  166. 

"Laughton     v.     .\tkins,     1     Pick. 
(Mass.)  535. 
"Frew  v.  Clarke,  80  Pa.  St.  170. 
'"Jones  v.  Nicolay,  2  Rob.  288;  Co- 
ver v.  Stem,  67  Md.  449,  10  Atl.  231, 
1  Am.  St.  406. 
■^  Sugden  on  Powers,  21. 
~  Rose  V.  Quick,  30  Pa.  St.  225. 
^^  Lucas  v.  Brooks,  18  Wall.  (U.  S.) 
436,  21  L.  ed.  779.    In  this  case  a  writ- 
ing bearing  even  date  with   another, 
which   purported   to  be   the   last   will 
and  testament  of  the  writer,  and  which 
disposed,  clearly  and  absolutely,  of  all 
his    estate;    the    first    writing   styling 
itself   a   letter   and   referring   to   the 
other  as  the  will,  the  "letter"  being 
for  the  information,  &c.,  of  the  exec- 
utors, has  no  testamentary  obligation, 
although  it  may  direct  certain  specific 
benefits  to  certain  persons. 


489 


EXECUTION,    REVOCATIOX    AND    PROBATE. 


849 


rections,  etc.,  in  regard  to  the  disposition  of  the  testator's  prop- 
erty, such  paper,  if  in  existence,  and  clearly  identified  as  the  one 
referred  to  in  the  will,  is  made  by  such  reference  a  part  of  the 
will,  and  should  be  probated  as  such.-^  But  where  such  extrane- 
ous paper  referred  to  is  the  property  of  another  person,  who  re- 
fuses to  give  it  up,  the  court  will  not  require  him  to  produce  it, 
but  will  direct  the  probate  of  the  will  without  the  incorporation 
of  such  paper. -^ 

An  instrument  properly  executed  which,  without  making  any 
disposition  of  property,  names  an  executor  for  the  estate  of  the 
testator,  should  be  admitted  to  probate  as  a  will.^® 

Schedules,  notes  and  other  papers  may  be  considered  in  con- 
nection with  the  will  and  as  a  part  of  it,  when  they  are  plainly 
identified  in  the  will.  And  this  was  the  case  where  notes  payable 
at  the  death  of  the  testator  were  folded  up  with  his  will,  and  were 
clearly  and  fully  identified,  and  remained  in  his  possession  at  the 
time  of  his  death.-' 

As  a  rule  all  papers  of  a  testamentary  character  should  be  ad- 


=*  Allen  V.  Maddock,   11  Moore,  P. 

C.  427;  Newton  v.  Seaman's  Friend 
Soc,  130  Mass.  91,  39  Am.  Rep.  433 ; 
Estate  of  Shillaber,  74  Cal.  144,  15 
Pac.  453,  5  .^m.  St.  433 ;  Symes  v.  Ap- 
pelbe,  57  L.  T.  (X.  S.)  599;  Fickle  v. 
Snepp,  97  Ind.  289,  49  Am.  Rep.  449n ; 
Fesler  v.  Simpson,  58  Ind.  83 ;  Fossel- 
man  v.  Elder,  98  Pa.  St.  159;  1  Jar. 
Wills,  n,  38 ;  1  Redf.  261,  262. 

''Goods  of  Sibthorp,  L.  R.  1  P.  & 

D.  106.  It  is  said,  in  this  case :  '"The 
court  is  not  justified  in  seeking  to 
elucidate  a  testator's  intentions  by 
compelling  third  persons  to  produce 
private  deeds  which  may  form  part  of 
the  titles  to  estates  in  which  the  tes- 
tator had  no  concern.  If  the  result 
be  that  the  probate  is  imperfect,  it 
arises  from  the  necessity  of  the  thing, 
and  the  fault  lies  with  the  testator,  or 
with  those  who  advised  him  to  make 
a  will  in  such  form." 


*  Schouler  Exrs.  &  Admrs.,  76. 

^^  Fickle  V.  Snepp,  97  Ind.  289,  49 
Am.  Rep.  449n;  Fesler  v.  Simpson,  58 
Ind.  83;  1  Redf.  Wills,  261,  262.  In 
Xewton  v.  Seaman's  Friend  Soc,  130 
Mass.  91,  39  Am.  Rep.  433,  it  is  said: 
"If  a  will,  executed  and  witnessed  as 
required  by  statute,  incorporates  in 
itself  by  reference  any  document  or 
paper  not  so  executed  and  witnessed, 
whether  the  paper  referred  to  be  in 
the  form  of  a  will  or  codicil,  or  of  a 
deed  or  indenture,  or  of  a  mere  list 
or  memorandum,  the  paper  so  refer- 
red to,  if  it  was  in  existence  at  the 
time  of  the  execution  of  the  will,  and 
is  identified  by  clear  and  satisfactory 
proof  as  the  paper  referred  to  there- 
in, takes  effect  as  part  of  the  will,  and 
should  be  admitted  to  probate  as 
such."  Fosselman  v.  Elder,  98  Pa.  St. 
159. 


5^1 — Pro.  L.\w. 


850  INDIANA    PROBATE    LAW.  §  49O 

mitted  to  probate,  and  if  there  is  doubt  as  to  the  testamentary 
character  of  the  paper  it  is  better  to  admit  it  to  probate  and  leave 
its  legal  effect  to  be  settled  in  a  contest.  For  the  question  as  to 
the  effect  a  will  may  have,  upon  the  testator's  property,  is  one  not 
to  be  determined  upon  its  probate."®  A  will  having  any  valid  pro- 
visions is  a  proper  subject  for  probate  but  if  upon  its  face  it  is 
wholly  void  probate  should  be  denied.  But  if  it  is  valid  for  any 
purpose,  though  it  may  be  void  in  part,  it  should  be  probated,  and 
the  construction  of  the  doubtful  or  invalid  provisions  left  to  the 
court  in  some  proper  proceeding.-" 

Codicils  are  usually  so  connected  with  the  will  that  they  cannot 
be  probated  apart  from  it.  But  a  will  may  be  probated  even 
though  the  codicil  cannot  be  found,  for  it  may  operate  separate 
and  apart  from  the  codicil. ^° 

§  490.  Where  probated. — The  general  rule  that  a  will  shall 
be  probated  in  the  county  where  the  testator  last  resided  regard- 
less of  the  place  where  the  will  was  made,  or  where  such  testator 
happened  to  die  is  modified  by  the  statute  in  this  state  which  pro- 
vides that:  "Proof  of  last  wills  may  be  taken  in  any  county: 
I  St,  where  the  testator,  immediately  previous  to  his  death,  was 
an  inhabitant  of  such  county ;  2d,  where  the  testator,  not  being  an 
inhabitant  of  this  state,  shall  die  in  such  county,  leaving  assets 
therein ;  3d,  where  the  testator,  not  being  an  inhabitant  of  this 
state,  shall  die  out  of  this  state,  leaving  assets  in  such  county ; 
4th,  where  a  testator,  not  being  an  inhabitant  of  this  state,  shall 
die  out  of  this  state,  not  leaving  assets  in  such  county,  but  assets 
of  such  testator  shall  come  into  the  county  thereafter."^^ 

By  the  English  law,  the  ecclesiastical  courts  had  exclusive 
jurisdiction  of  the  probate  of  all  wills  disposing  of  personal 
property,  but  wills  devising  real  estate  were  proved  in  any  court 
of  law  in  which  a  question  upon  them  arose.  In  this  state  a  will 
disposing  of  either  real  or  personal  property  must  be  probated 

"■'  Shouler  on  Exrs.,  60,  63.  re  Davis's  Will,  182  X.  Y.  468,  75  N. 

="  Clearspring    Tp.    v.    Blough,    173     E.  530. 
Ind.  15.  88  N.  E.  511,  89  N.  E.  369;  In        ''  Schouler  Exrs.,  60. 

"Burns'  R.  S.  1908,  §  3136. 


§  49^  EXECUTION,    REVOCATION    AND    PROBATE.  85I 

in  the  court  having  probate  jurisdiction;  the  statute  says  in  the 
circuit  court." 

Under  this  statute  a  will  must  be  proved  and  probated  in  the 
county  of  which  the  testator  was  an  inhabitant  immediately  pre- 
vious to  his  death,  or  if  he  were  not  an  inhabitant  of  this  state, 
in  the  county  in  which  he  left  assets  or  into  which  his  assets 
might  thereafter  come.^' 

A  will  may  be  proven  and  admitted  to  probate  in  open  court,  if 
it  is  in  session,  or  before  the  clerk  of  such  court  in  vacation,  and 
"upon  the  refusal  of  the  clerk  of  the  circuit  court  to  admit  a  will 
to  probate,  application  therefor  may  be  made  to  said  court."^* 

Where  a  will  was  in  good  faith  but  mistakenly  probated  in  the 
wrong  county,  the  clerk  of  such  county  cannot  be  compelled  to 
produce  such  will  for  probate  and  record  in  the  proper  county, 
it  being  held  it  was  the  duty  of  the  courts  of  the  latter  county 
to  accept  as  true  the  record  of  probate  made  by  the  court  of  the 
former.^^ 

§  491.  Custody,  and  production  of  the  will. — There  is  no 
law  in  this  state,  as  there  is  in  some  of  the  states,  providing  an 
official  depository  for  a  will  from  the  time  of  its  execution  until 
it  is  required  for  probate.  The  right  of  custody  and  control 
remains  with  the  testator,  and  where  he  has  been  reticent  about 
the  matter  of  its  execution,  it  is  sometimes  difficult  to  determine, 
after  his  death,  whether  he  left  a  will  or  not. 

Any  person  who  is  in  possession  of  the  will  of  any  decedent 
may  be  required  to  produce  the  same  for  proof  and  probate. 
The  statute  reads :  "On  the  application  to  such  circuit  court  of 

"Rogers  v.  Stevens,  8  Ind.  464.     In  of  the  will,  when  there  was  any,  be- 

this  case  the  court  quotes  from  Pa-  fore  he  resigned  the  right  which  he 

ley's  Moral  and  Political  Philosophy,  had  to  take  possession  of   the   dead 

as    follows.     "  'Anciently,    when    any  man's  fortune  in  case  of  intestacy.  In 

one  died  without  a  will,  a  bishop  of  this  way  wills,  and  controversies  re- 

the  diocese  took  possession  of  his  per-  lating  to  wills,  came  within  the  cogni- 

sonal  fortune,  in  order  to  dispose  of  zance  of  ecclesiastical  courts.' " 

it  for  the  benefit  of  his  soul,  that  is,  ^Harris  v.  Harris,  61  Ind.  117. 

to  pious  or  charitable  uses.  It  became  ^  Burns  R.  S.  1908,  §  3148. 

necessary,  therefore,  that  the  bishop  "Cunningham    v.    Tuley,    154    Ind. 

should  be  satisfied  of  the  authenticity  270,  56  X.  E.  27. 


852  INDIANA    PROBATE    LAW.  §  491 

any  person  interested,  the  clerk  thereof  shall  issue  a  citation  to 
any  person  alleged  to  ha\e  the  custody  of  any  will,  requiring 
such  person  to  produce  the  same  before  such  court  at  such  time 
as  the  court  shall  deem  reasonable,  that  the  same  may  be  duly 
proven.  And  any  person  having  such  will  in  his  possession,  who 
without  just  cause  shall,  after  such  citation,  fail  to  produce  such 
will,  may  be  committed  to  the  jail  of  the  county  by  an  order  of 
the  court,  there  to  remain  until  he  produce  such  will,  or  shall  be 
discharged  by  the  further  order  of  the  court;  and  shall,  more- 
over, be  liable  to  any  person  interested  in  such  will  for  tlie 
damages  occasioned  by  withholding  the  same."^" 

But  "the  person  alleged  to  have  the  custody  of  any  will  shall 
not  be  committed  to  jail  if  he  file  his  affidavit  that  such  will 
was  never  in  his  possession,  or  that  he  parted  with  its  custody 
before  the  service  of  such  citation  to  some  person  (naming 
the  person)  without  any  intention  to  defeat  or  delay  the  probate 
thereof."^' 

The  complaint  under  this  statute  must  aver  that  the  defend- 
ants to  such  application,  or  either  of  them,  have  the  custody 
of  the  alleged  will,  before  a  citation  can  be  issued  on  such 
complaint. ^^ 

If  any  person  is  interested  in  the  estate,  or  if  he  has  reason  to 
suppose  that  he  is  entitled  to  a  legacy  or  devise,  under  the  will 
of  any  decedent,  he  may  apply  for  a  citation  to  have  the  will 
produced. ^^ 

There  is  no  time  limit  fixed  by  the  law  in  this  state  within 
which  a  will  must  be  produced  for  probate.     But  a  bona  fide 

'*  Burns'  R.  S.  1908,  §  3139.  court.    *    *    *    If  the  appellants  have 

'^  Burns'  R.  S.  1908,  §  3140.  such  an  instrument  in  their  posession, 

^Duckworth    v.    Matlock,    31    Ind.  they  can  offer  it  for  probate,  if  it  be 

380.     It  is  said  in  this  case :     '"It  will  in  the  possession  of  any  one  else,  they 

be  observed  that  the  complaint  in  this  can  have  a  citation  requiring  the  per- 

case  does  not   aver  that  the  defend-  son   having  such   custody  to  produce 

ants  or  either  of  them  have  the  cus-  the  will  before  the  court  that  it  may 

tody  of  the   alleged  will,   and  there-  be  proved." 

fore  the  facts  stated  do  not  authorize  ''Foster  v.  Foster,  7  Paige  (X.  Y.) 

a  citation  against  them,  or  either  of  48. 
them,  to  produce  the  same  before  the 


§  491  EXECUTION,    REVOCATION    AND    PROBATE.  853 

purchaser  of  land  from  the  heirs  of  a  testator  can  hold  his  title 
as  against  the  devisees  in  the  will  if  such  will  is  not  produced 
and  probated  within  three  years  after  the  death  of  the  testator. 
The  statute  provides  that  "the  title  to  any  lands  or  interest 
therein,  purchased  in  good  faith  and  for  a  valuable  consideration, 
from  the  heirs-at-law  of  any  person  who  shall  have  died  seized 
of  real  estate,  shall  not  be  impaired  by  virtue  of  any  devise 
made  by  such  person  of  the  real  estate  so  purchased,  unless 
the  will  or  codicil  containing  such  devise  shall  have  been  fully 
proved,  and  recorded  in  the  office  of  the  clerk  of  the  court 
having  jurisdiction,  within  three  years  after  the  death  of  the 
testator,  except,  first,  where  the  devisee  shall  have  been  within 
the  age  of  twenty-one  years,  of  unsound  mind,  imprisoned,  or 
out  of  the  state  at  the  death  of  such  testator;  second,  where  it 
shall  appear  that  the  existence  of  such  will  or  codicil  shall 
have  been  concealed  from  or  unknown  to  such  devisee.  In 
which  cases  the  limitation  specified  in  this  section  shall  not 
commence  until  after  the  expiration  of  one  year  from  the  time 
of  such  disability  shall  have  been  removed,  or  such  will  or 
codicil  shall  have  come  into  the  control  of  such  devisee  or  his 
representative,  or  have  been  deposited  in  the  clerk's  office  of 
the  circuit  court."*" 

The  purchaser  of  lands  within  the  purview  of  this  statute,  in 
an  action  for  their  recovery,  unless  the  complaint  shows  upon 
its  face  that  the  plaintiffs  are  not  within  any  of  these  exceptions 
named  in  the  statute,  must  plead  such  limitation.  He  cannot 
raise  the  question  simply  by  demurrer  to  the  complaint.*^ 

*°  Burns'  R.  S.  1908,  §  3131.  resided    in    this    state    at    any    time. 

"  Biggs  V.  McCarty,  86  Ind.  352,  44  *    *    *    If  they  thus  lived  out  of  the 

Am.  Rep.  320.     In  this  case  it  is  said :  state,  the  statute  did  not  run  against 

"It  appears  in  the  complaint  that  An-  them. 

geline  Biggs  and  her  husband  were  "Assuming  that  the  statute  re- 
married in  Kentucky,  and  that  she  ferred  to  applies  as  well  to  foreign  as 
died  in  Missouri.  It  is  not  alleged,  to  domestic  wills,  a  question  which  we 
nor  does  it  appear  from  the  complaint,  do  not  decide,  the  objection  to  the 
that  she  ever  resided  in  the  state  of  complaint  is  not  well  taken.  Unless 
Indiana;  nor  does  it  appear  from  the  the  complaint  shows  upon  its  face 
complaint  that  any  of  the  appellants  that  the  appellants  are  not  within  any 


854  INDIANA  PROBATE  LAW.  §  492 

Whoever,  during  the  Hfe  of  the  testator  or  after  his  death, 
steals,  takes,  and  carries  away  a  will,  codicil,  or  other  testa- 
mentary instrument  executed  by  such  testator,  or,  for  a  fraudu- 
lent purpose,  destroys  or  secretes  the  same,  upon  conviction 
thereof  shall  be  imprisoned  in  the  state  prison  not  more  than 
fourteen  years  nor  less  than  two  years,  fined  not  exceeding  one 
thousand  dollars  and  disfranchised  and  rendered  incapable  of 
holding  any  office  of  trust  or  profit  for  any  determinate  period." 

§  492.  Proof  of  the  will. — Before  a  will  can  be  probated 
proof  must  be  made  of  its  proper  execution,  the  testator's  sig- 
nature, the  attestation  of  the  witnesses,  the  publication  of  the 
will  and  such  like  matters.  The  statute  reads  as  follows :  "Be- 
fore a  written  will  shall  be  admitted  to  probate,  or  letters  testa- 
mentary or  of  administration,  with  the  will  annexed,  shall  be 
granted  thereon,  such  will  shall  be  proven  by  one  or  more 
of  the  subscribing  witnesses,  or,  if  they  be  dead,  out  of  the 
state,  or  have  become  incompetent  from  any  cause  since  attest- 
ing such  will,  then  by  proof  of  the  handwriting  of  the  testator 
or  of  the  subscribing  witnesses  thereto."''^ 

The  testimony  of  one  of  the  subscribing  witnesses  is  sufficient 
to  prove  the  due  execution  of  the  will,  where  such  witness 
knows  that  he  and  the  other  witness  or  witnesses  subscribed 
the  will  as  such  in  the  presence  of  the  testator.** 

of    the    exceptions    contained    in    the  al)undantly  prove  the  due  formal  exe- 

17th  section,  the  appellee  must,  in  or-  cution  of  the  will.    But  it  is  insisted 

der   to  avail   himself   of    its  benefits,  by  counsel  for  the  appellees,  that  tw^o 

plead  the  limitation."     Milner  v.  Hy-  of  the  subscribing  witnesses  were  suc- 

land,  n  Ind.  458;  Harlen  v.  Watson,  cessfully  impeached,  and  that  the  jury 

63  Ind.  143.  were,  therefore,  justified  in  disregard- 

^  Burns'  R.  S.  1908,  §  2275.  ing   their    evidence.     We    express    no 

**  Burns'  R.  S.  1908,  §  3141.  opinion  as  to  the  effect  of  the  evi- 

**  Hayes  v.  West,  Zl  Ind.  21.     The  dence  claimed  to  have  been' impeach- 

court  in  this  case  says :     "The  three  ing.     The  situation  of  the  case   ren- 

attesting    witnesses    were    examined,  ders  it  unnecessary  that  we  should  do 

each  of  whom  testified  to  the  acknowl-  so.     One  of  the  attesting  witnesses  is 

edgement  by  the  testator  of  the  exe-  not  claimed  to  have  been  in  any  man- 

cution  of  the  will  by  him,   and  that  ner    impeached,     and    his     testimony 

they  signed  it  as  witnesses  at  his  re-  alone,  in  our  opinion,  establishes  the 

quest,    and    in    his    presence.    They  due  execution  of  the  will." 


§  49-  EXECUTION,    REVOCATION    AND    PROBATE.  855 

The  competency  of  the  witnesses  attesting  the  execution  of 
a  will  is  presumed  until  the  contraty  is  shown/" 

It  is  further  provided  that :  'Tf  none  of  the  subscribing  wit- 
nesses to  a  will  be  produced,  their  subsecjuent  incompetency, 
death  or  absence  from  the  state  shall  be  proven  before  evi- 
dence of  the  handwriting  of  the  testator,  or  of  one  of  the  sub- 
scribing witnesses,  shall  be  received,  and  such  evidence  shall 
be  taken  in  the  same  manner  as  on  a  trial  at  law."**^ 

"\A'itnesses  may  be  summoned  by  subpoena,  to  be  issued  by 
the  clerk  of  the  circuit  court,  to  appear  and  testify  respecting 
the  execution,  subscribing,  and  attesting  of  such  will."^'^ 

These  sections  of  the  statute  contemplate  no  more  than  due 
proof  of  the  formal  execution  of  the  will,  and  clearly  mean 
when  such  proof  is  made  the  will  shall  be  admitted  to  probate. 
The  statute  does  not  mean  that  whosoever  proposes  a  will  for 
probate  shall  be  compelled  to  establish  the  sanity  and  freedom 
from  duress  of  the  testator  at  the  time  of  executing  the  will. 
Such  sanity  and  liberty  of  action  will  be  presumed. ^^ 

It  is  not  necessary  to  prove  a  fomial  request  to  the  witnesses. 
It  is  enough  to  show  that  the  will  was  subscribed  to  as  such 
by  the  testator  in  their  presence,  and  by  them  as  witnesses  in 
the  conscious  presence  of  the  testator.*'' 

\Miere  it  is  sought  to  secure  the  probate  of  a  will  and  both 
the  subscribing  witnesses  thereto  are  dead,  it  is  error  to  admit  the 
statements  of  the  alleged  witnesses  made  in  their  lifetime,  as  to 
the   fact  of   the   execution   and   attestation   of   such   will,   such 

^  Herbert  v.  Berrier,  81  Ind.  1.  the  contrary,  to  have  an  inference  of 

^  Burns'  R.  S.  1908,  §  3143.     "Proof  its   genuineness   made  in   his   favor." 

of  the  genuineness  of  the  signatures  Herbert  v.  Berrier,  81  Ind.  1, 

of  the  attesting  vi^itnesses  was  proper-  ■*'  Burns'  R.  S.  1908,  §  3138. 

ly  made  by  proving  their  handvirriting.  *'  Herbert  v.  Berrier,  81  Ind.  1. 

It  may  be  inferred  from  evidence  of  *  Herbert  v.  Berrier,  81  Ind.  1 ;  Tur- 

handwriting,  that  signatures  are  gen-  ner  v.  Cook,  36  Ind.  129;  In  re  Will 

uine.  A  party  who  shows  that  a  name  of  Allen,  1  Am.  Prob.  580 ;  Cheatham 

is   in  the  handwriting  of  the  person  v.  Hatcher,  30  Gratt.  (Va.)  56,  32  Am. 

whose  signature  is  in  question,  has  a  Rep.  650. 
right,  in  the  absence  of  anything  to 


856  INDIANA    PROBATE    LAW.  §  493 

evidence  being  excluded  by  the  rule  against  hearsa}-.  Lapse  of 
time  and  necessity  will  be  no  excuse  for  waiving  the  rule.'" 

Where  the  genuineness  of  the  signature  of  the  testator,  to- 
gether with  that  of  the  subscribing  witnesses,  they  both  being 
dead,  are  called  in  question,  the  validity  of  such  signatures  may 
be  established  by  the  evidence  of  those  who  are  acquainted  with 
the  handwriting  of  each  and  who  have  shown  themselves  other- 
wise qualified  to  entitle  them  to  an  opinion  as  to  the  genuineness 
of  the  signatures  they  are  called  upon  to  identify. ^^ 

It  is  provided  by  statute :  "If  any  one  shall  be  a  subscribing 
witness  to  the  execution  of  any  will  in  which  any  interest  is 
passed  to  him,  and  such  will  cannot  be  proven  without  his  testi- 
mony or  proof  of  his  signature  thereto  as  a  witness,  such  will 
shall  be  void  only  as  to  him  and  persons  claiming  under  him, 
and  he  shall  be  compellable  to  testify  respecting  the  execution  of 
such  will  as  if  no  interest  had  been  passed  to  him ;  but  if  he  would 
otherwise  have  been  entitled  to  a  distributive  share  of  the 
testator's  estate,  then  so  much  of  said  estate  as  said  witness 
would  have  been  thus  entitled  to,  not  exceeding  the  value  of  such 
interest  passed  to  him  by  such  will,  shall  be  saved  to  him."°- 

Under  this  statute  it  has  been  held  that  the  wife  of  a  bene- 
ficiary under  a  will  is  not  a  competent  subscribing  witness  to 
such  will  to  prove  the  due  execution  thereof.'^' 

§  493.  Proof  by  depositions. — The  statute  provides  for  the 
subpoenaing  of  witnesses  to  appear  and  testify  in  proceedings 
for  the  probate  of  a  will,  either  in  court  or  during  vacation, 
before  the  clerk,  but  until  1895  it  made  no  provision  for  taking 
the  deposition  of  such  witnesses  for  such  purpose;  the  statute 
seems  to  contemplate  a  personal  appearance  of  the  witnesses 
and  a  personal  examination  of  them.  The  proceedings  before 
the  clerk  in  vacation  are  necessarily  ex  parte  in  their  character, 
while  the  statute  providing  for  the  taking  of  depositions  con- 

^  Morell  V.  Morell,  157  Ind.  179,  60  ^^  Burns'  R.  S.  1908,  §  3144. 

N.  E.  1092.  ''  Belledin  v.  Gooley,  157  Ind.  49,  60 

"  Morell  V.  Morell,  157  Ind.  179,  60  N.  E.  706 ;  ante,  §  475. 
N.  E.  1092. 


§  494  EXECUTION,    REVOCATION    AND    PROBATE.  857 

templates  proceedings  of  an  adversary  character,  with  notice  to 
the  adverse  party.^* 

The  following  statute  enacted  in  1895  ^^^  amended  in  1899 
now  authorizes  the  taking  of  depositions  in  proof  of  wills.  It 
provides  that  whenever  the  subscribing  witnesses  to  a  will  are 
dead,  or  absent  from  the  state,  or  if  in  the  state,  are  unable  to 
be  present  in  court  to  probate  a  will,  on  account  of  sickness  or 
other  disability,  or  where,  if  in  the  state,  their  attendance  in 
court  could  not  be  enforced  by  subpoena  in  an  ordinary  civil 
action,  any  person  interested  in  the  probating  of  such  will  may 
have  the  depositions  of  witnesses  taken  to  make  the  necessary 
proof  to  probate  such  will,  as  now  provided  by  law,  by  posting 
notices  in  the  clerk's  office  of  the  court  in  which  it  is  desired  to 
probate  such  will,  of  the  time  and  place  of  taking  such  deposi- 
tions and  giving  the  names  in  such  notice  of  the  witnesses  whose 
depositions  are  to  be  taken,  at  least  twenty  days  before  the  time 
set  for  taking  the  same;  and  by  sei-ving  a  personal  notice  upon 
one  or  more  persons  who  may  be  interested  in  the  probating 
of  such  will,  if  any  such  person  or  persons  reside  within  the 
county  where  such  will  is  intended  to  be  probated. ^^ 

§  494.  Preservation  and  effect  of  proof. — "If  it  shall  ap- 
pear from  the  proof  taken  that  the  will  was  duly  executed,  and 
that  the  testator  at  the  time  of  executing  the  same  was  compe- 
tent to  devise  his  property  and  not  under  coercion,  such  testi- 
mony shall  be  written  down,  subscribed  by  the  witness  examined 
and  attested  by  said  clerk,  with  his  signature  and  seal  of  office; 
and  the  will,  with  such  testimony  and  attestation,  shall  be  re- 
corded by  such  clerk  in  a  book  kept  for  that  purpose,  and  certi- 
fied by  him  to  be  a  complete  record."^^ 

It  has  been  held  that  this  section  of  the  statute  does  not  re- 
quire proof  of  the  testamentary  capacity  and  freedom  from  re- 
straint of  the  testator;  but  that  the  natural  presumption  of 
competency  must  prevail  unless  something  countervailing  it  ap- 
pears; and  that  proof  of  the  formal  execution  of  the  will  itself 

"  Duckworth  v.  Hibbs,  38  Ind.  78.  "'  Burns'  R.  S.  1908,  §  3145. 

''  Burns'  R.  S.  1908,  §  3142. 


858  INDIANA    PROBATE    LAW. 


49; 


will  be  held  to  supply  grounds  for  inferring  the  competency  of 
the  testator." 

''The  record  of  the  testimony,  taken  and  recorded  pursuant 
to  the  provisions  of  this  act,  and  exemplifications  of  such  record 
by  the  officer  in  whose  custody  the  same  may  be,  shall  be  received 
as  evidence  upon  any  controversy  concerning  any  lands  devised 
by  such  will,  and  shall  be  of  the  same  force  and  effect  upon 
the  trial  of  such  controversy,  and  may  be  rebutted,  impeached 
and  sustained  in  like  manner  as  if  taken  in  open  court,  if  the 
witnesses  examined  when  probate  was  allowed  are  dead,  out  of 
the  state,  or  have  become  incompetent  since  the  admission  of 
such  will  to  probate."^'* 

§495.  Probating  wills  of  absentees. — In  l'A)7  the  legisla- 
ture passed  an  act  authorizing  the  probate  of  the  wills  of  persons 
who  had  absented  themselves  and  gone  to  parts  unknown.  This 
statute  provides :  That  when  any  resident  of  this  state  shall  have 
absented  himself  from  his  usual  place  of  residence  and  gone  to 
parts  unknown  for  the  space  of  five  years;  and  when  in  such  case 
thirty  days'  notice  shall  have  been  given  to  such  person  by  pub- 
lication in  a  newspaper  of  general  circulation  published  at  the 
capital  of  tlie  state  and  also  in  a  paper  published  in  such  county, 
if  there  be  any,  it  shall  be  presumed  and  taken  by  the  court  having 
probate  jurisdiction  in  the  county  where  such  {person  last  resided 
that  such  person  is  dead,  upon  presentation  of  proper  proof  of 
such  absence  and  of  publication  of  notice.  Any  person  interested 
in  any  part  of  the  estate  specified  in  the  will  of  such  absentee 
may  have  such  will  proven  in  the  circuit  court  when  in  session, 
and  such  proof  shall  be  taken  in  the  county  where  such  absentee 
last  resided.  The  probate  of  a  will  as  herein  provided  shall  be 
subject  to  all  the  provisions  of  the  law  as  now  provided  for  the 
probate  of  a  will  upon  the  death  of  the  testator,  so  far  as  the 
same  may  be  applicable.^'' 

This  act  is  the  complement  of  §  2747,  Burns'  R.  S.  1908,  pro- 
viding for  administration  upon  the  estates  of  absentees. 

"  Herbert  v.  Berrier,  81  Ind.  1.  »  Burns'  R.  S.  1908.  §  3137. 

"^  Bums'  R.  S.  1908,  §  3168. 


§  496  EXECUTION,    REVOCATION    AND    PROBATE.  859 

§  496.  The  effect  of  probate. — Whether  or  not  under  oiir 
mode  of  procedure  for  the  probating  of  wills  the  record  of  such 
probate  has  the  effect  of  an  ordinary  judgment,  and  as  to  the  due 
execution  of  the  will  is  res  ad  judicata,  except  in  an  action  un- 
der the  statute  to  contest  such  will,  the  Supreme  Court  says : 
"In  our  state  a  will  may  be  admitted  to  probate  before  the 
clerk  of  the  circuit  court  in  vacation,  or  by  the  court  in  term 
time.  In  either  case  no  notice  is  required,  and  when  a  will  is 
admitted  to  probate  before  the  court,  the  clerk  is  directed  merely 
to  make  just  such  a  record  as  he  would  make  in  vacation  without 
direction.  It  has  been  held,  and  is  the  settled  law  of  this  state, 
that  the  clerk  of  the  circuit  court  cannot  exercise  judicial 
powers."*"* 

An  ex  parte  probate  ascertains  nothing  but  the  prima  facie 
validity  of  a  will,  and  that  the  instrument  is  seemingly  what 
it  purports  to  be.*^^  The  probate  of  a  will  is  conclusive  as  to 
the  fact  that  a  will  was  executed,  and  the  proceeding  cannot 
be  attacked  collaterally;  but  such  probate  is  conclusive  only  as 
to  the  fact  of  the  valid  execution  of  the  will;  it  adjudicates  noth- 
ing as  to  the  meaning  or  operation  of  the  will.*'" 

And  until  such  will  has  been  properly  probated,  it  cannot  be 
used  for  any  purpose,  either  to  vest  or  establish  any  right  under 
it,  or  as  evidence  in  any  court  of  a  right  claimed  ;*'^  but  when 
once  properly  probated,  the  will  becomes  operative,  and  relates 
back  to  the  date  of  the  testators  death.*'* 

A  will  duly  probated  in  another  state,  although  such  probate 

""Lange  v.  Dammier,   119  Ind.  567,  effect  of  the  will  and  its  interpreta- 

21  X.  E.  749.  tion,   whereon   titles  under  it   rested, 

"Burns  v.   Travis,   117  Ind.  44,   18  were  not  determined  in  the  proceed- 

>;    £   45  ings  for  its  probate.    These  were  mat- 

*=Faught   V.    Faught,   98   Ind.   470;  ters  for  adjudication  when  rights  and 

Poplin  V.  Hawke,  8  N.  H.  124.     The  property  were  claimed  under  the  will." 

rule  upon  this  subject  is  thus  stated  in  Evans  v.  Anderson,  15  Ohio  St.  324. 

Fallon  V.  Chidester,  46  Iowa,  588,  26  ^  Pitts    v.    Melser,    72    Ind.    469; 

Am.   Rep.   164,  referring  to  the  pro-  ]Moore  v.  Stephens,  97  Ind.  271 ;  Thie- 

bate  of  the  will,  the  court  says:     "It  hand  v.  Sebastian,  10  Ind.  454;  Lucas 

did    not    establish    the    testamentary  v.  Tucker,  17  Ind.  41. 

character  of  the  instrument,  and  give  "  Pitts  v.   Melser,  72  Ind.  469.     In 

validity  to  a  title  based  upon  it.     The  this  case  it  is  said :     "The  will,  under 


86o  INDIANA  PROBATE  LAW.  §  496 

was  fraiululcntly  procured,  cannot  in  this  state  be  attacked  in  an 
action  to  (|uiet  title.*"^ 

The  probate  of  a  will  is  not  in  any  particular  the  foundation 
of  the  title  of  the  executor.  Such  title  rests  in  the  will  itself. 
The  will  before  probate  is  in  no  sense  a  nullity;  it  is  still  a  will. 
The  probate  ascertains  nothing  but  the  original  validity  of  the 
will  as  such.  The  act  of  the  testator  gave  it  life,  his  death  con- 
summated the  title,  the  probate  only  ascertaining  the  fact  that 
the  instrument  is  what  it  purports  to  be.''" 

The  probate  of  a  will  relates  back  to  the  death  of  the  testator, 
and  all  the  property  of  the  testator  at  the  time  of  his  death 
belongs  of  right  to  his  executor.'"'^  The  doctrine  that  letters  testa- 
mentary issued  after  the  probate  of  a  will  relate  back  to  the  death 
of  the  testator,  and  legalize  all  the  intermediate  acts  of  the  ex- 
ecutor, must,  however,  be  understood  to  cover  only  such  acts 
as  he  could  have  legally  done,  had  he  been  executor  at  the  time."* 

The  statute  in  this  state  provides  that,  "No  executor  named  in 
the  will  shall  interfere  with  the  estate  intrusted  to  him,  further 
than  to  preserve  the  same  until  the  issuing  of  letters ;  but,  for 
that  purpose,  he  may  prosecute  any  suit  to  prevent  the  loss  of 
any  part  thereof.""" 

A  judgment  of  the  probate  court,  admitting  a  will  to  probate 
in  which  no  executor  is  named,  vests  the  personal  property  of 

which    they   claim,    is  not    shown    to  "  Ex  parte  Fuller,  2  Story  (U.  S.) 

have  been  probated  in  Shelby  county,  327;  Ingle  v.  Richards,  28  Beav.  361. 

or  elsewhere  in  this  state,  either  as  a  "Ex  parte  Fuller,  2  Story  (U.  S.) 

domestic   or   foreign   will,   and,   until  327;     Drury     v.     Natick,     10     Allen 

such  probate  has  been  had,  a  will  can  (Mass.)    169;    Willard  v.   Hammond, 

neither   operate   to  vest   or  establish,  21  N.  H.  382;  Hartnctt  v.  Wandell,  60 

nor  be  used  as  evidence  of,  a  right  N.  Y.  346,  19  Am.  Rep.  194;  Hall  v. 

claimed      thereunder."      Naylor      v.  Ashby,  9  Ohio  96,  34  Am.  Dec.  424; 

Moody,  2  Blackf.  (Ind.)  247;  Rogers  Hill  v.  Tucker,  13  How.  (U.  S.)  458, 

V.  Stevens,  8  Ind.  464;  Lucas  v.  Tuck-  14  L.  ed.  223. 

cr,     17    Ind.    41;    Kerr    v.    Moon,    9  °*  Bellinger  v.   Ford,  21    Barb.    (N. 

Wheat.  (U.  S.)  565,  6  L.  cd.  161.  Y.)  311. 

'"  Winslow  v.  Donnellv,  119  Ind.  565,  '"  Burns'  R.  S.  1908,  §  2740 
22  N.  E.  12. 


§  497  EXECUTION,    REVOCATION    AND    PROBATE.  86l 

the  testator  in  the  administrator,  with  the  will  annexed,  by  rela- 
tion from  the  death  of  the  testator/'^ 

The  order  of  court  probating  a  will  is  a  judicial  act  and  is 
impervious  to  a  collateral  attack,  and  if  it  is  not  vacated  in  some 
appropriate  proceeding  brought  for  that  purpose,  within  three 
years  from  the  date  the  will  is  offered  for  probate,  it  becomes 
unimpeachable  and  conclusive  as  to  all  persons  except  infants, 
persons  of  unsound  mind  and  persons  absent  from  the  state.'^ 

There  is  a  right  of  appeal  from  the  order  of  a  court  admitting 
a  will  to  probate.  And  in  such  appeal  it  is  necessary  to  make  all 
the  parties  interested,  including  the  executor  and  all  those  named 
as  beneficiaries,  both  in  the  will  and  in  the  codicils,  parties  to 
such  appeal.  And  as  an  action  to  establish  and  probate  an  alleged 
will  is  one  to  determine  the  property  rights  of  living  persons, 
such  appeal  is  not  governed  by  the  statute  relating  to  appeals  in 
proceedings  under  the  act  for  the  settlement  of  decedents'  estates, 
but  such  appeal  must  be  taken  under  the  provisions  of  the  civil 
code.'- 

§  497.  Certificate  of  probate. — After  a  will  has  been  proven 
and  probated,  it  is  provided  that,  "Every  will  so  proven  shall 
have  a  certificate  indorsed  thereon  or  attached  thereto,  sub- 
stantially stating  that  it  has  been  admitted  to  probate;  that  a 
complete  record  of  it  and  the  testimony  of  the  witnesses,  has 
been  duly  recorded,  the  names  of  such  witnesses,  and  the  title 
and  page  of  the  book  in  which  it  is  recorded;  which  certificate 
shall  be  attested  by  the  signature  of  the  clerk  of  such  court  and 
his  official  seal."" 

"Every  will  so  authenticated,  or  a  complete  copy  of  the  record 
thereof,  certified  by  the  court  in  whose  custody  it  may  be,  and 

•"Drury  v.  Natick.  10  Allen  (Mass.)  "  Alorell  v.  Morell,  157  Ind.  179,  60 

169.  N.  E.  1092 ;  Vesey  v.  Day,  —  Ind.  — , 

"  Steinkuehler     v.     Wempner,     169  93  X.  E.  210 ;  Veasey  v.  Day,  —  Ind. 

Ind.    154,  81   N.  E.  482;   Winslow  v.  — ,    94    N.    481;    Kreuter    v.    English 

Donnelly,  119  Ind.  565,  22  N.  E.  12;  Lake  Land  Co.,   159  Ind.  Zll,  65  X. 

Blanchard  v.  Wilbur,  153  Ind.  387,  55  E.  4. 

N.  E.  99;  Bartlett  v.  Manor,  146  Ind.  "  Burns"  R.  S.  1908,  §  3146. 
621,  45  X.  E.  1060. 


862  INDIANA  PROBATE  LAW.  §  498 

attested  by  his  signature  and  official  seal,  may  be  read  in  evi- 
dence without  further  proof. "^* 

The  will  itself  is  competent  evidence,  without  the  introduction 
of  the  record  of  probate,  but  if  the  record  is  introduced,  it  must 
all  be  admitted.  The  probate  and  the  will  can  no  more  be 
severed,  and  the  will  admitted  while  the  probate  thereof  is 
rejected,  than  the  record  of  a  deed  can  be  severed  from  the 
certificate  of  acknowledgment.  The  record  being  competent  evi- 
dence must  be  admitted  as  a  whole." 

Whenever  any  authenticated  copy  of  any  will,  or  letters  testa- 
mentary or  of  administration,  the  record  whereof  has  been  de- 
stroyed, shall  be  produced  to  the  clerk  of  the  proper  court,  he 
shall  record  the  same  in  the  same  manner  as  if  it  were  the  original, 
and  shall  note  upon  the  record  the  date  at  which  it  was  originally 
recorded;  which  last  record  shall  have  the  same  force  and  effect 
the  original  record  would  have  had  if  the  same  had  not  been 
destroyed.^" 

§  498.  Record  and  probate  of  foreign  wills. — Any  written 
will  that  shall  have  been  proved  or  allowed  in  any  other  state 
of  the  United  States  or  in  any  foreign  country,  according  to 
the  laws  of  such  state  or  country,  may  be  received  and  recorded 
in  this  state  in  the  manner  and  for  the  purposes  mentioned  in 
the  next  two  following  sections." 

Such  will  shall  be  duly  certified  under  the  seal  of  the  court 
or  officer  taking  such  proof,  or  a  copy  of  such  will  and  the  probate 
thereof  shall  be  duly  certified,  under  the  seal  of  his  court  or 
office,  by  the  clerk,  prothonotary,  or  surrogate,  who  has  the 
custody  or  probate  thereof,  and  such  certificate  shall  be  attested 
and  certified  to  be  authentic  and  by  the  proper  officer,  by  the 
presiding  or  sole  judge  of  the  court  by  whose  clerk  or  prothon- 
otary  such   certificate   shall  have  been  made;   or   if   such   will 

•' Burns' R.  S.  1908  J  3147.  (Ind.)   313;  Cline  v.  Gibson,  23  Ind. 

"Summers    v.    Copeland,    125    Ind.  11 ;  Glidewell  v.  Spaugh,  26  Ind.  319. 
466,  25   N.   E.  555;   Tenant  v.   Rum-        "  Burns' R.  S.  1908,  §  1318. 
field,  11  Ind.  130;  Miles  v.  Wingate,  6        "  Burns'  R.  S.  1908,  §  3149. 
Ind.   458;   Foot  v.   Glover,  4   Blackf. 


§  49^  EXECUTION,    REVOCATION    AND    PROBATE.  863 

were  jKlmitted  to  probate  before  any  officer,  being  his  own  clerk, 
his  certificate  of  such  will  or  record  shall  be  attested  and  certi- 
fied to  be  authentic  and  by  the  proper  officer  by  the  presiding  or 
sole  judge,  chancellor  or  vice-chancellor  of  the  court  liavuig 
supei'vision  of  the  acts  of  such  officer.'® 

Such  will  or  copy,  and  the  probate  thereof,  may  be  produced 
by  any  person  interested  therein,  to  the  circuit  court  of  the 
county  in  which  there  is  any  estate  on  which  the  will  may  op- 
erate; and  if  said  court  shall  be  satisfied  that  the  instrument 
ought  to  be  allowed  as  the  last  will  of  the  deceased,  such  court 
shall  order  the  same  to  be  filed  and  recorded  by  the  clerk,  and 
thereupon  such  will  shall  have  the  same  effect  as  if  it  had  been 
originally  admitted  to  probate  and  recorded  in  this  state.'"" 

These  sections  of  the  statute  contain  all  of  the  statutoiy  pro- 
visions relating  to  what  may  be  termed  foreign  wills,  that  is, 
written  wills  not  executed  in  this  state,  which  have  been  proven 
or  allowed  in  any  other  of  the  United  States,  or  in  any  foreign 
countiy,  according  to  the  laws  of  such  state  or  counti-y  before 
the  production  of  such  wills,  or  copies  thereof  and  of  the  pro- 
bate thereof  to  the  courts  of  this  state.®^ 

In  construing  these  sections  relative  to  the  proof  and  probate 
of  foreign  wills,  the  Supreme  Court  of  this  state,  in  one  case, 
says :  "By  the  above  sections  three  things  are  required  to  render 
a  foreign  will  valid  in  this  state :  First,  the  will  must  have  been 
proven  or  allowed  in  some  other  of  the  American  states,  or  in 
some  foreign  country,  according  to  the  laws  of  such  state  or 
country ;  second,  such  will,  after  being  proven  or  allowed,  must 
be  certified  in  the  manner  pointed  out ;  third,  such  will  or  copy, 
and  the  probate  thereof,  must  be  produced  to  the  proper  court 
of  any  county  in  which  there  is  any  estate  on  which  the  will  may 

''  Burns'  R.  S.  1908,  §  3150.  bate  thereof,  duly  certified,  &c."  Har- 
'"Burns'  R.  S.  1908,  §  3151.  "It  will  ris  v.  Harris,  61  Ind.  117. 
be  seen,  that  provision  is  made,  in  said  ^"Harris  v.  Harris,  61  Ind.  117;  as 
section  35,  for  the  production  in  the  to  probate  of  foreign  will,  see,  Par- 
courts  of  this  state,  first,  of  such  nell  v.  Thompson,  81  Kan.  119,  105 
wills,  duly  certified.  &c.,  and,  second-  Pac.  502,  33  L.  R.  A.  (N.  S.)  658. 
ly,  of  copies  of  such  wills  and  the  pro- 


864  INDIANA    PROBATE    LAW.  §  498 

operate;  and  if  said  court  shall  be  satisfied  that  the  instrument 
jught  to  be  allowed  as  the  last  will  of  the  deceased,  such  court 
shall  order  the  same  to  be  filed  and  recorded  by  the  clerk.  When 
these  things  have  been  done,  such  will  shall  have  the  same  effect 
as  if  it  had  been  originally  admitted  to  probate  and  recorded  in 
this  state.'"' 

No  will  executed  in  this  state,  and  allowed  or  proven  in  any 
other  state,  shall  be  admitted  to  probate  in  this  state,  unless 
executed  according  to  the  laws  of  this  state.^" 

It  has  further  been  settled  by  the  decisions  of  our  Supreme 
Court  that  a  foreign  will  can  have  no  effect  or  operation  until 
it  has  been  so  proved  before  the  proper  court  of  some  county  of 
this  state  where  some  part  of  the  estate  of  the  testator  is,  and 
has  been  so  ordered  to  be  recorded ;  and  such  proof  must  be 
made  to  the  satisfaction  of  the  court,  and  the  order  made  by 
the  court.  The  court  in  hearing  the  proof  and  making  the  order 
acts  judicially,  and  the  order  should  be  spread  upon  the  order- 
book  of  the  court.  The  clerk,  in  making  a  record  of  such,  acts 
only  in  a  ministerial  capacity.*^ 

And  where  a  will  is  executed  and  admitted  to  probate  in  any 
other  state  or  country,  its  execution  and  probate  will  be  gov- 
erned by  the  laws  of  that  state  or  country,  and  if  valid  by  such 
laws  will  be  valid  and  executed  in  this  state,  if  proved  and  re- 
corded here  as  required  by  these  statutes.^* 

It  is  also  held  that  the  execution  of  a  will  in  another  state, 
devising  land  in  this  state,  must  be  in  conformity  to  the  laws 

*^  State   V.   Joyce,   48   Ind.   310.     In  shall  have  the  same  force  and  effect 

Lucas  V.  Tucker,  17  Ind.  41,  the  court  as  if  it  had  been  originally  admitted 

says :    "The  substance  of  these  enact-  to  probate  in  this   state ;  that  letters 

ments  is,  that  if  such  will  is  proved  shall  then  be  issued  thereon,  and  fur- 

and   certified   in   the   manner   therein  ther  proceedings  had,  as  in  cases  orig- 

designated,  and  if  upon  its  production  inally  arising  in  this  state." 

to  the  probate  court  of  a  county  in  ^  Burns' R.  S.  1908,  §  3152. 

vi^hich  there  is  any  estate  'upon  which  *' Rogers    v.    Stevens,    8    Ind.    464; 

said  will  may  operate,  said  court  shall  Thieband  v.    Sebastian,    10   Ind.  454 ; 

be  satisfied  that  the  instrument  ought  Lucas  v.  Tucker,  17  Ind.  41. 

to  be  allowed,'  &c.,  the  same  shall  be  ^  State  v.  Joyce,  48  Ind.  310. 
filed  and  recorded  bv  the  clerk,  and 


§  499  EXECUTION,    REVOCATION    AND    PROBATE.  865 

of  this  state. ®^  This  is  in  accordance  with  the  principle  of  gen- 
eral law,  that  the  title  to  and  disposition  of  real  property  must 
be  exclusively  subject  to  the  laws  of  the  country  where  the  real 
estate  is  situated.'^'^ 

This  rule  limits  the  application  of  the  preceding  one  to  wills 
devising  personalty.  The  title  to  personal  property  passes  by 
the  law  of  the  place  of  the  owner's  residence. 

As  a  general  rule  it  may  be  said  that  the  proper  place  to 
probate  a  will  is  in  the  proper  court  of  the  county  where  the 
testator  was  last  domiciled,  and  this  is  true  irrespective  of  the 
place  where  the  will  was  made.  The  law  of  one's  last  domicile 
not  only  decides  what  constitutes  one's  last  will,  but  whether  the 
party  died  testate  or  intestate,  and  that  all  questions  as  to  the 
forms  and  solemnities  attending  a  due  execution  of  the  will  were 
complied  with  according  to  the  law  of  the  domicile.*' 

§  499.  Lost  wills,  how  established. — No  wall  of  any  testa- 
tor shall  be  allowed  to  be  proven  and  established  as  lost  or 
destroyed  unless  the  same  shall  be  proven  to  have  been  in  exist- 
ence at  the  time  of  the  death  of  the  testator,  or  be  shown  to 
have  been  destroyed  in  the  lifetime  of  the  testator  without  his 
consent,  or  otherwise  fraudulently  disposed  of,  nor  unless  the 
provisions  shall  be  clearly  proven  by  two  witnesses,  or  by  a 
correct  copy  and  the  testimony  of  one  witness. ^^ 

In  legal  contemplation  an  insane  man  can  neither  form  nor 
manifest  an  intention,  so  where  a  testator  in  a  fit  of  temporary 
insanity  destroys  his  will  it  is  not  an  act  done  with  his  consent 
and  does  not  prevent  its  proof  and  establishment  as  a  destroyed 
will  under  this  statute.®^ 

^Calloway  v.  Doe,  1  Blackf.  (Ind.)  23  Ohio  St.  491;  Reed  v.  Bishops,  — 

372 ;  Lucas  v.  Tucker,  17  Ind.  41.  Ind.  App.  —  97  N.  E.  1023. 

*«  United  States  v.  Crosby,  7  Cranch  "^  Burns'  R.  S.  1908,  §  3167. 

(U.   S.)    115,  3   L.  ed.  287;   Kerr  v.  ^  In  re  Forman's  Will,  54  Barb.  (N. 

Moon,  9  Wheat.  (U.  S.)  565,  6  L.  ed.  Y.)   274;  Timon  v.   Claffy,  45   Barb. 

161;  Darby  V.  Mayer,  10  Wheat.  (U.  (N.    Y.)    438;    Idley   v.    Bowen,    11 

S.)  465,  6  L.  ed.  367.     As  to  the  right  Wend.    (N.   Y.)    227.     In  Forbing  v. 

to  sell  lands  in  this  state  under  a  for-  Weber,  99  Ind.  588,  it  is  said :     "In 

eign  will,  see  §§  86,  87,  88,  ante.  our  opinion,  the  evidence  shows  that 

"  Schouler  Exrs.,  17 ;  19  Am.  &  Eng.  in  legal  contemplation,  and  within  the 
Encyc.  Law  173;  Converse  v.  Starr, 
55 — Pro.  Law. 


866  INDIANA    PROBATE    LAW.  i?  499 

In  a  proceeding  to  prove  and  establish  a  will  which  has  been 
destroyed,  proof  that  the  testator  had  caused  such  will  to  be 
recorded  in  the  recorder's  office,  and  that  such  record  is  a  correct 
copy  of  the  will;  and  the  further  evidence  of  the  attesting  wit- 
nesses to  the  will  destroyed  that  the  original  will  was  duly  ex- 
ecuted, is  sufficient  to  establish  such  will.''*'  And  when  it  has 
been  proven  or  admitted  that  a  will  has  been  lost  or  destroyed, 
its  contents  may  be  proven  by  the  person  who  wrote  it.^' 

The  statute  does  not  define  how  or  what  kind  of  an  action 
shall  be  brought  to  establish  a  lost  or  destroyed  will,  nor  does 
it  clearly  define  the  jurisdiction,  but  it  seems  to  recognize  such 
jurisdiction  in  the  circuit  court,  and  it  may  be  assumed  that 
such  court  will  entertain  a  complaint  for  such  purpose.  Such 
complaint  must  clearly  show  that  the  will  sought  to  be  estab- 
lished has  either  been  lost  or  destroyed.  It  should  allege  one 
or  the  other  as  a  cause  for  the  action.^" 

A  lost  or  destroyed  will  cannot  be  used  as  evidence  to  sustain, 
or  otherwise  affect,  the  title  to  property  devised  or  bequeathed 
by  it,  until  it  has  been  proved  or  established  according  to  law.®^ 

meaning  of  the  statute,  the  will  was  not  have  the  force  of  a  record,  but  it 

destroyed  without  the  testator's  con-  did  exhibit  a  copy  of  the  will,  and, 

sent.     It  is  shown  by  the  testimony  of  when  proper  supplementary  testimony 

several    witnesses,    that    it    was    de-  was  given  by  the  person  who  made 

stroyed,  with  other  papers,  when  the  the  copy,  the  instrument  as  copied  was 

testator  was  acting  wildly,  threaten-  properly  read  in  evidence." 

ing  to  kill  his  son-in-law,  and  while  "'  Ford  v.  Teagle,  62  Ind.  61. 

he  was  engaged  in  other  acts  of  vio-  °-  Raster  v.  Raster,  52  Ind.  531.     In 

lence.    These  witnesses,  having  stated  an  action  to   establish   a   lost  will,   a 

the  facts,  declared  that  in  their  opin-  jury  trial   cannot  be   demanded  as   a 

ion  he  was  of  unsound  mind  at  the  matter  of  right.     Wright  v.  Fultz,  138 

time  the  will  was  destroyed.     If  this  Ind.  594,  38  N.  E.  175.     In  an  action 

be  true  it  follows  that  he  was  not  le-  to  establish  a  will,  allegations  of  the 

gaily    capable    of    consenting    to    any  execution  of  the  will,  the  intestacy  of 

get."  the   testatrix,   and  the   destruction  of 

*"  Forbing  v.  Weber,  99  Ind.  588.  In  the   will   after   her   death,    sufficiently 

this  case  it  is  said:     "The  record  of  show  the  existence  of  the  will  at  the 

the  will  was  not  competent  evidence  death    of   testatrix.    Jones   v.    Casler, 

as  a  record,  for  the  will  was  not  enti-  139  Ind.  382,  38  N.  E.  812,  47  Am.  St. 

tied  to   go   upon   record,   but   it   was  274. 

competent  for  the  purpose  of  exhibit-  "'  Mauck  v.  Melton,  64  Ind.  414. 
ing  a  copy  of  the  instrument.     It  did 


§  499  EXECUTION,    REVOCATION    AND    PROBATE.  86/ 

In  an  action  to  set  aside  a  will  which  has  been  admitted  to 
probate,  and  to  prove  and  establish  a  will  alleged  to  be  lost, 
those  who  have  purchased  land  from  devisees  under  the  probated 
will  are  necessary  parties  defendant.®* 

The  complaint  in  such  a  case  should  show  that  the  decedent 
executed  a  will,  and  that  it  was  afterwards  destroyed  without 
his  consent  in  his  lifetime  or  otherwise  fraudulently  disposed  of, 
or  if  lost  that  such  will  was  in  existence  at  the  time  of  the  death 
of  the  testator.®'^  The  loss  or  destruction  of  the  will  must  occur 
after  the  death  of  the  testator,  unless  it  was  fraudulently  de- 
stroyed in  his  lifetime.''^  Such  complaint  need  not  state  the  time 
nor  place  of  destruction,  nor  by  whom,  when  or  how  it  was 
destroyed.®^ 

The  complaint  in  such  actions  need  not  set  out  the  exact 
words  of  the  will  alleged  to  be  lost  or  destroyed.  In  the  ab- 
sence of  a  copy  this  could  hardly  be  done.  All  that  can  reason- 
ably be  required  of  the  pleader  under  such  circumstances  is 
to  show  in  general  terms  the  disposition  which  the  testator  made 
of  his  property  by  the  instrument,  and  that  it  purported  to  be 
his  will  and  was  duly  executed,  and  attested  by  the  requisite 

**  Roberts  v.  Abbott,  127  Ind.  83,  26  real  estate  was  to  be  divided  equally 

N.  E.  565.   The  issue  to  be  tried  in  an  between  said  child  and  plaintiff,  and 

action  to  establish  a  lost  will  is,  "did  that,  by  reason  of  the  destruction  of 

he   devise  or  not?"  and  when  a  de-  said  will,  only  the  substance  thereof 

fendant  is  not  concerned  in  its  execu-  can  be  given,   is   good  on   demurrer, 

tion,  an  answer  of  general  denial  is  Jones  v.   Casler,   139  Ind.  382,  38  N. 

sufficient.     Wright  v.  Fultz,  138  Ind.  E.  812,  47  Am.  St.  274. 

594,  38  X.  E.  175.     In  an  action  to  es-  '-^Kellogg  v.  Ridgely,  161   Ind.   110, 

tablish  a  destroyed  will,  a  complaint  67  N.  E.  929;  Gfroerer  v.  Gfroerer, 

which    alleges   that  the   testatrix    de-  173  Ind.  424,  90  N.  E.  757. 

vised  certain  lands  to  her  husband  for  °*  Harris   v.    Harris,    36   Barb.    (N. 

life,  and,  after  his  death,  to  the  plain-  Y.)  88;  In  re  Kennedy's  Will,  167  N. 

tiff  in  fee,  provided  testatrix  had  no  Y.  163,  60  N.  E.  442. 

child  living  at  the  time  of  the  death  "  Gfroerer   v.     Gfroerer,     173    Ind. 

of  said  husband,  and  that,  if  testatrix  424,  90  N.  E.  757. 
should  have  a  child  at  such  time,  the 


868 


INDIANA    PROBATE    LAW. 


499 


number  of  witnesses.*^  Nor  will  such  complaint  be  bad  for 
failing  to  allege  the  county  and  state  where  the  testator  died.®** 

It  would  also  seem  that  such  complaint  should  be  sworn  to.^ 
The  answer,  however,  in  such  actions  need  not  be  sworn  to." 

Such  actions  are  not  triable  by  a  jury,  but  must  be  tried  by 
the  court,  the  action  being  one  of  equitable  jurisdiction.^ 

The  right  to  set  aside  a  will  and  revoke  the  probate  thereof  is 
of  statutory  origin,  while  the  right  to  establish  a  lost  or  destroyed 
will  is  of  equitable  cognizance  and  has  statutory  recognition  only 
in  respect  to  the  proof  required,  the  record  of  the  decree  and 
the  restraining  proceedings  in  relation  to  the  estate  pending  the 
litigation.  But  the  two  rights  may  be  enforced  in  one  proceed- 
ing,^ and  one  will  and  its  probate  be  substituted  for  another  will 
and  its  probate.  Such  a  proceeding,  though,  involves  the  contest 
of  the  latter  will  and  the  rules  of  procedure  in  cases  of  contest 
must  be  observed.^ 


"^  Jones  V.  easier,  139  Ind.  382,  38 
N.  E.  812,  47  Am.  St.  274;  Allison  v. 
Allison,  7  Dana  (Ky.)  91;  Early  v. 
Early,  5  Redf.  (N.  Y.)  lid.  As  is  said 
in  Anderson  v.  Irwin,  101  111.  411: 
"The  instrument  in  controversy  hav- 
ing been  destroyed  without  the  fault 
of  the  defendant  in  error,  *  *  *  and 
there  not  appearing  to  be  any  copy  of 
it  in  existence,  it  would  be  equivalent 
to  denying  the  complainant  relief  alto- 
gether to  require  her  to  prove  the  very 
terms  in  which  it  was  conceived." 

"'Jones  V.  easier,  139  Ind.  382,  38 
N.  E.  812,  47  Am.  St.  274.  In  Gaines 
V.  ehew,  2  How.  (U.  S.)  619,  11  L. 
ed.  402,  Mrs.  Gaines  sought  to  estab- 
lish a  lost  will  in  her  favor,  and  to 
her  bill  in  equity  for  that  purpose  she 
made  the  purchasers  under  another 
will  parties  defendant.  The  Supreme 
eourt  of  the  United  States  held  that 
such  purchasers  were  proper  parties. 

^  Stafford  V.  Bartholomew,  2  Ind. 
153;     Pennington     v.     Governor,     1 


Blackf.  (Ind.)  78;  Findlay  v.  Hinde, 
1  Pet.  (U.  S.)  241,  7  L.  ed.  128. 

'Wright  V.  Fultz,  138  Ind.  594,  38 
N.  E.  175.  The  court  in  this  case 
says :  "The  appellant's  counsel  bare- 
ly suggest  that  the  answer  in  this  case 
to  be  available  should  have  been  veri- 
fied. It  seems  absurd  to  assume  that 
a  party  should  be  required  to  file  a 
plea  of  non  est  factum  to  an  alleged 
will,  when  it  is  not  contended  that  he 
had  anything  to  do  with  its  execu- 
tion." 

'Wright  V.  Fultz,  138  Ind.  594,  38 
N.  E.  175.  See  Jones  v.  Gasler,  139 
Ind.  382,  38  N.  E.  812,  47  Am.  St.  274. 

*  Bartlett  v.  Manor,  146  Ind.  621,  45 
N.  E.  1060;  McDonald  v.  McDonald, 
142  Ind.  55,  41  N.  E.  336;  Roberts  v. 
Abbott,  127  Ind.  83,  26  N.  E.  565; 
Burns  v.  Travis,  117  Ind.  44,  18  N.  E. 
45. 

^  Burns  v.  Travis,  117  Ind.  44,  18  N. 
E.  45 ;  Bartlett  v.  Manor,  146  Ind.  621, 
45  N.  E.  1060. 


§  500  EXECUTION,    REVOCATION    AND    PROBATE.  869 

§  500.  The  degree  of  proof  required. — The  statute  requires 
that  the  provisions  of  the  will  alleged  to  be  lost,  or  destroyed, 
must  be  "clearly  proven"  by  at  least  two  witnesses.  When  the 
correctness  of  a  copy  of  such  will  is  once  established  such  copy 
is  equivalent  to  one  witness.*'  There  is  no  difference  between  the 
rules  of  evidence  applicable  to  the  case  of  a  lost  will  and  those 
rules  governing  the  reproduction  of  any  other  lost  instrument.'^ 
The  usual  ground  must  be  laid  for  introducing  secondary  evi- 
dence of  the  contents  of  a  will  alleged  to  be  lost.^ 

Where  the  court  must  depend  upon  the  memory  of  witnesses 
for  proof  of  the  substance  of  a  will  lost,  or  destroyed,  it  should 
require  the  fullest  and  most  stringent  proof.  It  is  said  that  as 
a  result  of  the  exercise  of  such  severe  scrutiny  of  the  evidence 
offered  very  few  lost  wills  are  established  unless  there  appears 
to  be  good  reason  to  believe  that  they  were  purposely  suppressed, 
or  destroyed.  In  all  other  cases  the  mere  fact  of  their  being 
lost  makes  in  favor  of  a  presumption  of  revocation.^ 

Declarations  of  the  testator  are  admissible  to  show  the  making 
of  a  will,  its  continued  existence,  and  in  proof  of  its  contents 
also  to  rebut  or  confirm  the  presumption  of  its  revocation.^" 

"  Burns'  R.  S.  1908,  §  3167.  14  Hun  (X.  Y.)  396;  Allison  v.  Alli- 

■  1  Redf.  on  Wills,  p.  2.     It  is  said  son,  7  Dana   (Ky.)  91.     The  contents 

in  Jones  v.  Casler,  139  Ind.  382,  38  N.  of  a  will  which  can  be  produced,  can- 

E.  812,  47  Am.  St.  274:     "We  would  not  be  proven  by  parol,  and  if  such 

not  be  understood  as  departing  in  the  evidence  is  admitted  over  proper  ob- 

slightest    from    the    requirement    that  jection  it  constitutes  a  reversible  er- 

the   provisions    of    the    will    shall   be  ror.     McNear    v.    Roberson,    12    Ind. 

clearly  proven,  but  we  do  not  incline  App.  87,  39  N.  E.  896. 

to  the  rule  contended  for  by  counsel  '"  Best  Ev.  401 ;  Taylor  Ev.   168 ;  1 

for    appellant,    that    such     strictness  Greenl.  Ev.,  §  558n;  In  re  Marsh,  45 

shall  be  required  as  would  practically  Hun   (N.  Y.)    107;  Pickens  v.  Davis, 

defeat  the  ends  of  justice  and  pro-  134  Mass.  252,  45  Am.  Rep.  322n ;  Fos- 

mote   the    evil    intended    to    be    rem-  ter's  Appeal,  87    Pa.    St.  67,  30  Am. 

edied."  Rep.  340 ;  Mercer  v.  Mackin,  14  Bush. 

^Voorhees   v.   Voorhees,  39   N.   Y.  (Ky.)  434;  Collagan  v.  Burns,  57  Me. 

463,    100   Am.   Dec.   458;    Havard  v.  449;  Patterson  v.  Hickey,  32  Ga.  156; 

Davis.  2  Binn.   (Pa.)  406;  Taylor  on  Lawyer  v.  Smith,  8  Mich.  411,  77  Am. 

Ev.,  §§  495,  935.  Dec.  460. 

'  2  Redf.  Wills,  p.  16 ;  Hook  v.  Pratt, 


8/0 


INDIANA    PROBATE    LAW. 


§500 


But  such  post-testamentary  declarations  of  the  testator,  while 
they  may  be  received  to  corroborate  the  testimony  of  other  wit- 
nesses as  to  the  contents  of  such  lost  or  destroyed  will,  are  not 
sufficient,  of  themselves,  to  supply  the  necessary  testimony  of 
other  witnesses  as  to  such  provisions/^ 

While  the  testimony  of  two  witnesses,  or  of  a  correct  copy 
of  the  will  and  one  witness,  may  be  sufficient  to  establish  a 
will  lost  or  destroyed,  it  is  an  unquestionable  requisite  that  the 
due  execution  of  the  instrument  must  also  be  proved  as  in  ordi- 
nary cases/^ 

The  burden  of  proof  in  such  action  is  upon  the  persons  seeking 
to  establish  the  will/^ 

While  proof  of  the  substance  of  the  provisions  of  the  will  is 
accepted  as  sufficient,  by  the  term  provisions  it  is  not  intended 
to  comprehend  all  of  the  terms  of  the  will,  including-  the  ap- 
pointment of  executors,  revocation  of  former  wills  and  the  like, 
but  only  such  provisions  as  conferred  some  property  right  upon 
devisees  or  legatees.^* 


"  McDonald  v.  ISIcDonald,  142  Ind. 
55,  41  N.  E.  336;  Inlow  v.  Hughes,  38 
Ind.  App.  375,  76  N.  E.  763. 

"Bailey  v.  Stiles,  1  Green  Ch.  (N. 
J.)  220. 

^Newell  V.  Homer,  120  Mass.  277; 
Chisholm  v.  Ben,  7  B.  Mon.  (Ky.) 
408;  Graham  v.  O'Fallon,  3  Mo.  507. 
It  is  enough  to  prove  the  substance  of 
the  will,  without  proving  the  precise 
statement  of  the  language  or  terms 
used  in  such  will.  Davis  v.  Davis,  2 
Addams  277;  McNally  v.  Brown,  5 
Redf.  (N.  Y.)  372;  Morris  v.  Swaney, 
7  Heisk.  (Tenn.)  591.  Held,  that  in 
an  action  to  establish  such  a  will,  a 
charge  that  the  provisions  thereof 
must  be  clearly  proved  by  two  wit- 
nesses, and  that,  if  the  jury  found  any 
fact  "established  by  the  preponderance 
of  the  evidence,"  they  should  state 
such  fact  in  the  special  verdict,  is  not 


erroneous.    Jones  v.   Casler,   139  Ind. 
382,  38  N.  E.  812,  47  Am.  St.  274. 

"Wallis  V.  Wallis,  114  Mass.  510; 
Vining  v.  Hall,  40  Miss.  83.  In  Jones 
V.  Casler,  139  Ind.  382,  38  N.  E.  812, 
47  Am.  St.  274,  it  is  said :  "There  are 
cases  which  hold  that  if  the  devises 
are  proven  only  in  part  those  which 
are  proven  satisfactorily  may  be  pro- 
bated. Dickey  v.  Malechi,  6  Mo.  177 ; 
34  Am.  Dec.  130 ;  Burge  v.  Hamilton, 
72  Ga.  568;  Skeggs  v.  Horton,  82  Ala. 
352,  [2  So.  110] ;  Dower  v.  Seeds,  28 
W.  Va.  113,  57  Am.  Rep.  646.  It  is 
not  essential  to  our  conclusion,  that 
we  should  adopt  this  rule  in  its  apph- 
cation  to  both  lost  and  fraudulently 
destroyed  wills,  but  it  cannot  be  ob- 
jected by  a  spoliator,  who  has  de- 
stroyed the  evidence  of  provisions 
which  may  benefit  him,  that  the  pro- 
visions which   have  been   proven   ac- 


§  501  EXECUTION,    REVOCATION    AND    PROBATE.  87I 

The  decree  rendered  in  such  actions  of  course  should  be  framed 
according  to  the  facts  found  and  the  issues  raised.  If  the  find- 
ing is  in  favor  of  estabhshing  the  will  the  copy  of  such  will 
or  the  substance  of  it  as  proven  should  be  set  out  in  the  decree. ^^ 

While  in  the  matter  of  costs  such  suit  rests  largely  in  the  dis- 
cretion of  the  court  trying  the  action,  they  are  in  cases  where  the 
w^ill  is  established,  usuall}'  taxed  to  the  estate.^®  But  where  the 
loss  or  destruction  of  the  will  is  due  to  the  fault  or  negligence  of 
any  one  the  costs  should  be  taxed  against  the  person  guilty  of  the 
negligence  or  misconduct.^" 

§  501.  Decree  to  be  recorded. — After  any  will,  lost  or  de- 
stroyed, has  been  properly  established  and  a  decree  to  that  effect 
rendered,  the  statute  provides  for  its  recording,  etc.,  as  follows : 
"Whenever  any  will  shall  have  been  lost  or  destroyed,  and  the 
same  shall  have  been  established  according  to  law,  the  decree  of 
the  court  establishing  such  will  shall  be  recorded  in  the  proper 
book  thereof  by  the  clerk  of  the  proper  court  in  which  such  will 
might  have  been  proven  if  not  lost  or  destroyed;  and  letters  tes- 
tamentary or  of  administration  w^th  the  will  annexed  shall  be 
issued  thereon,  in  the  same  manner  as  wills  duly  proved  before 
such  court  or  the  clerk  thereof,  and  letters  of  administration 
previously  granted  upon  the  same  estate  shall  be  revoked ;  but  the 
court  before  which  proceedings  were  had  to  contest  the  validity, 
due  execution,  or  to  prove  such  will,  or  to  establish  a  lost  or 

cording  to  law  shall  not  be  effective,  to  find  whether   such  will   had  been 

and    this    should    be    especially    true  proven  by  two  witnesses,  as  required, 

where  it  does  not  appear  that  provis-  the  presumption   being  that   the   will 

ions    not    so    fully  established   would  was  so  proven.     Jones  v.  Casler,  139 

probably     modify     those     provisions  Ind.  382,  38  N.  E.  812,  47  Am.  St.  274. 

which  are  fully  established."  ^'^  Wyckoff  v.  Wyckoff,  16  N.  J.  Eq. 

^  Dower  v.  Seeds,  28  W.  Va.  113,  57  401 ;  Everitt  v.  Everitt,  41  Barb.   (N. 

Am.  Rep.  646;  McXally  v.  Brown,  5  Y.)  385;  Succession  of  Gaines,  38  La. 

Redf.    (X.  Y.)    372.     It  is  not  neces-  Ann.  123;  Collyer  v.  Collyer,  4  Dem. 

sary,  in  an  action  to  establish  a  de-  (N.  Y.)  53. 

stroyed  will,  to  prove  a  search   for,  "  Foster  v.  Foster,  1  Addams,  182 

and  a  failure  to  find,  said  will  before  Martin    v.    Laking,    1    Hag.    Ec.   244 

the  commencement  of  the  action.     In  Taylor  v.   Bennett,  1  Ohio  C.  C.  95 

an  action  to  establish  a  will,  a  special  Podmore  v.  Whatton,  3  S.  &  T.  449. 
verdict  is  not  vitiated  by  the  omission 


872  INDIANA    PROBATE   LAW.  §  5OI 

destroyed  will,  shall  have  authority  to  restrain  the  executor  or 
administrator  acting  from  any  proceedings  which  it  may  judge 
injurious  to  the  heirs  or  devisees  of  the  deceased."^* 

"After  the  service  of  such  restraining  order,  such  administra- 
tor, executor,  or  administrator  with  the  will  annexed,  shall  sus- 
pend all  proceedings  in  relation  to  the  estate  of  the  testator, 
except  the  collection  and  recovery  of  moneys  and  the  payment 
of  debts,  and  the  performance  of  such  duties  in  the  disposal 
of  the  property  of  the  estate  not  inconsistent  with  the  rights  of 
the  parties  interested  in  such  estate,  whether  the  will  in  con- 
troversy or  the  probate  thereof  should  be  defeated  or  established, 
until  a  decision  be  had  in  such  case."^® 

The  last  clause  of  the  first  section  above  set  out  and  the  pro- 
visions of  section  last  quoted,  from  their  phraseology  seem  in- 
tended to  apply  in  all  cases  of  the  contest  of  wills,  without  regard 
to  whether  they  are  lost  or  destroyed  or  not.  The  language  is 
certainly  too  general  to  be  confined  to  cases  involving  the  valid- 
ity and  due  execution  of  lost  or  destroyed  wills  only.  The  right 
of  the  proper  court  to  issue  restraining  orders  in  all  cases  in- 
volving the  validity  and  due  execution  of  any  will,  pending  a 
decision,  I  think  will  not  be  disputed. 

"  Burns'  R.  S.  1908,  §  3165.  ^  Burns'  R.  S.  1908,  §  3166. 


CHAPTER  XXIV. 


CONSTRUCTION   OF  WILLS. 


i  502.  General  rules  in  regard  to  con-     §  514. 

struction,  etc.  515. 

503.  Rules  as  to  intention. 

504.  Rules  as  to  repugnancy.  516. 

505.  Rules  for  supplying  words.  517. 

506.  As  to  extrinsic  evidence.  518. 

507.  As  to  parol  evidence.  519. 

508.  Miscellaneous  rules.  520. 

509.  Rule  as  to  personal  property.  521. 

510.  As  to  precatory  words.  522. 

511.  Declarations  of  the  testator.  523. 

512.  Terms  descriptive  of  classes.  524. 

513.  Disinheritance  of  heirs. 


Passes  the  entire  estate,  when. 
Conditions  in  restraint  of  mar- 
riage. 
When  a  devise  shall  not  lapse. 
A  devise  of  rents  and  profits. 
The  rule  in  Shelley's  case. 
Exception  to  the  rule. 
The  estate  liable  for  debts. 
When  legacies  a  charge. 
Rights  of  husband  and  wife. 
When  devise  passes  fee  simple. 
Vested  estates — Remainders. 


§502.    General  rules  in  regard  to   construction,  etc. — It 

may  be  stated  as  a  rule  which  has  become  almost  axiomatic,  that 
all  parts  of  a  will  are  to  be  construed  in  relation  to  each  other 
so  as,  if  possible,  to  form  one  consistent  whole,  and  thus  uphold 
and  give  effect  to  all  the  provisions  of  the  will.^ 

Where  a  will  is  open  to  two  constructions,  and  one  will  give 
effect  to  the  whole  instrument,  while  the  other  will  destroy  a 
part,  the  former  construction  must  be  adopted." 


'Brumfield  v.  Drook,  101  Ind.  190; 
Kelly  V.  Stinson,  8  Blackf.  (Ind.)  387; 
Baker  v.  Riley,  16  Ind.  479;  Craig  v. 
Secrist,  54  Ind.  419;  Fraim  v.  Milli- 
son,  59  Ind.  123;  Cann  v.  Fidler,  62 
Ind.  116;  Lofton  v.  Moore,  83  Ind. 
112;  Hinds  v.  Hinds,  85  Ind.  312; 
Waters  v.  Bishop,  122  Ind.  516,  24  N. 
E.  161 ;  Jenkins  v.  Compton,  123  Ind. 
117,  23  N.  E.  1091;  Nading  v.  Elliott, 


137  Ind.  261,  36  N.  E.  695;  Beach, 
Wills,  p.  517;  Corey  v.  Springer,  138 
Ind.  506,  Z1  N.  E.  322.  In  construing 
a  will,  the  intention  of  the  testator  is 
to  be  sought  for  in  its  provisions,  and 
it  is  to  be  given  effect,  if  not  contrary 
to  law.  Sibert  v.  Cox,  100  Ind.  392; 
Moore  v.  Gary,  149  Ind.  51,  48  N.  E. 
630. 
=  Butler  v.  Moore,  9^  Ind.  359 ;  Pru- 


873 


874 


INDIANA    PROBATE    LAW. 


§502 


The  general  intent,  and  not  particular  phrases,  controls  and 
overrides  all  merely  special  or  particular  expressions  found  in 
a  will.  Faulty  expressions  and  inaccurate  words  will  not  be 
pemiitted  to  defeat  the  intention  of  the  testator;  nor  can  such 
intention  be  thwarted  by  detached  clauses.  Clauses  in  a  will 
are  to  be  construed  by  the  aid  of  other  clauses  or  words  with 
which  they  are  grouped.^  \\'ords  in  wills  are  to  be  construed 
in  their  common  or  ordinary  sense,  and  no  word  can  be  rejected 
and  another  substituted  in  its  place  without  the  clearest  certainty 
that  such  was  the  intention  of  the  testator.* 

The  materials  of  this  and  the  five  succeeding  sections  have 
been  supplied  from  the  able  treatises  of  Redfield,  Jarman,  and 
Williams,  and  by  Wigram's  work  on  Extrinsic  Evidence.  The 
subject  is  too  ample  a  one  to  attempt,  in  a  work  of  this  kind, 
more  than  a  mere  statement,  as  concise  as  possible,  of  the  more 
important  principles. 

The   general    rules   of   constiTiction    by  Jarman    will    always 


den  V.  Pruden,  14  Ohio  St.  251 ;  Brum- 
field  V.  Drook,  101  Ind.  190. 

'Castor  V.  Jones,  86  Ind.  289.  A 
testator  has  a  right  to  assign  a  mean- 
ing to  the  words  employed  by  him, 
and  when  that  meaning  is  fully  and 
clearly  apparent,  it  will  control  and 
will  take  from  the  words  their  usual 
technical  signification.  Ridgeway  v. 
Lamphear,  99  Ind.  251. 

*  State  V.  Joyce,  48  Ind.  310.  Words 
employed  in  a  will  must  be  given  their 
ordinary  meaning,  unless  there  is  lan- 
guage in  the  will  which  indicates 
clearly  that  the  testator  did  not  use 
the  words  in  question  in  their  plain 
and  ordinary  sense.  West  v.  Rassman, 
135  Ind.  278,  34  X.  E.  991.  The  chan- 
cery powers  of  a  court  cannot  be  in- 
voked to  reform  a  will  by  eHminating 
words  or  phrases  and  supplying 
others,  so  as  to  make  the  instrument 
conform  to  what  may  be  supposed  to 


have  been  the  real  intention  of  the 
testator.  It  is  only  in  the  clearest 
cases  that  courts  will  undertake  to 
substitute  or  change  the  words  of  a 
will.  Shimer  v.  Mann,  99  Ind.  190, 
50  Am.  Rep.  82;  Gibson  v.  Seymour, 
102  Ind.  485,  2  N.  E.  305,  52  Am.  Rep. 
688;  Sturgis  v.  Work,  122  Ind.  134,  22 
X.  E.  996,  17  Am.  St.  349;  Waters  v. 
Bishop,  122  Ind.  516,  24  X.  E.  161.  A 
testator  is  presumed  to  have  used  the 
words  in  which  he  expressed  his  in- 
tentions according  to  their  strict  and 
primary  acceptation,  and  if,  when  ap- 
plied to  the  extrinsic  facts  referred 
to,  they  are  sensible,  parol  evidence  is 
not  admissible  to  show  that  they  were 
used  in  some  other  sense;  but  it  is 
otherwise  if  the  words,  in  their  strict 
and  primary  sense,  are  meaningless 
when  applied  to  such  extrinsic  facts. 
Daugherty  v.  Rogers,  119  Ind.  254,  20 
X.  E.  779,  3  L.  R.  A.  847n. 


§  502  CONSTRUCTION    OF    WILLS.  875 

prove  of  great  practical  convenience,  and  are  here  given  at 
length.  While  they  have  acquired  the  weight  of  authority,  they 
yet  call  for  the  exercise  of  considerable  discretion  in  their  appli- 
cation to  particular  cases.    They  are  as  follows : 

1.  A  will  of  real  estate,  wherever  made,  and  in  whatever 
language  written,  is  construed  according  to  the  law  of  the  place 
or  countiy  in  which  the  property  is  situate,  but  a  will  of  person- 
alty is  governed  by  the  law  of  the  domicile. 

2.  Technical  words  are  not  very  necessary  to  give  effect  to 
anv  species  of  disposition  in  a  will.^ 

3.  The  construction  of  a  will  is  the  same  at  law  as  in  equity, 
the  jurisdiction  of  each  being  governed  by  the  nature  of  the 
subject,  though  consequences  may  differ." 

4.  A  will  speaks  for  some  purposes,  from  the  period  of  its 
execution,  and  for  others,  from  the  death  of  the  testator,  but 
never  operates  until  the  latter  period.' 

5.  The  heir  is  not  to  be  disinherited  without  an  express  de- 
vise, or  necessary  implication,  such  implication  importing  not 
natural  necessity,  but  so  strong  a  probability  that  an  intention 
to  the  contrar}-  cannot  be  supposed.^ 

'^  The  cardinal  rule  in  the  construe-  498,  19  N.  E.  468 ;  Wright  v.  Charley, 

tion  of  wills  is  to  ascertain  and  give  129  Ind.  257,  28  X.   E.  706.     A  will 

eflfect  to  the  intention  of  the  testator  speaks  from  the  daj-  of  the  death  of 

but,  when  purely  technical  terms  are  the  testator.     Brown  v.  Critchell,  110 

used,  the  technical  meaning  must  be  Ind.  31,  7  N.  E.  888,  11  N.  E.  486; 

assigned    them,     unless    the     context  Hopkins  v.  Ratliflf,  115  Ind.  213,  17  N. 

clearly    shows   that   the   testator    em-  E.  288;  Heilman  v.  Heilman,  129  Ind. 

ployed    them    in    a    diflferent    sense.  59,  28  X.  E.  310. 

Ridgeway  v.  Lanphear,  99  Ind.  251.  '  Butler  v.  Aloore,  94  Ind.  359.     An 

*Lutz  V.  Lutz,  2  Blackf.  (Ind.)  72;  heir  cannot  be  disinherited  unless  the 

Baker  v.  Riley,  16  Ind.  479.  intention   to    disinherit   be   expressed, 

^  Kelly  V.  Stinson,  8  Blackf.   (Ind.)  or  is  to  be  clearly  and  necessarily  im- 

387.     Where  real  estate  is  devised  to  plied.     Where  one  construction  of  an 

one,   coupled  with   a   devise   over,   in  ambiguous  will  leads  to  the  disinher- 

case  of  his  death  without  issue,  and  itance  of  the  heir,  and  another  to  a 

the  primary-  devisee  survives  the  testa-  result  favorable  to  the  heir,  the  latter 

tor,    he    takes    an    absolute    fee,    the  construction  must  be  adopted.     Crew 

words  referring  to  a  death  meaning  a  v.  Dixon,  129  Ind.  85,  27  X.  E.  728; 

death  in  the  lifetime  of  the  testator.  Aspy  v.  Lewis,  152  Ind.  493,  52  X.  E. 

Harris  v.  Carpenter,  109  Ind.  540,   10  756. 
N.  E.  422;  Hoover  v.  Hoover,  116  Ind. 


876 


INDIANA    PROBATE    LAW. 


?502 


6.  Merely  negative  words  are  not  sufficient  to  exclude  the 
title  of  the  heir  or  next  of  kin.  There  must  be  an  actual  gift  to 
some  other  definite  object. 

7.  All  parts  of  a  will  are  to  be  construed  in  relation  to  each 
other,  and  so  as.  if  possible,  to  form  one  consistent  whole;  but 
where  several  parts  are  absolutely  irreconcilable,  the  latter  must 
prevail." 

8.  Extrinsic  evidence  is  not  admissible  to  alter,  detract  from, 
or  add  to  the  terms  of  a  will.'^ 

9.  Nor  is  it  admissible  to  vary  the  meaning  of  words,  and 
therefore  to  attach  a  strained  and  extraordinaiy  sense  to  a  par- 
ticular word,  in  an  instalment  executed  by  the  testator,  in  which 
the  same  word  occurs  in  that  sense. 

10.  But  tlie  court  will  look  at  the  circumstances  under  which 


•  Evans  v.  Hudson,  6  Ind.  293 ;  Hol- 
defer  v.  Teifel.  51  Ind.  343;  Butler  v. 
Moore,  94  Ind.  359.  In  the  construc- 
tion of  wills,  courts  seek  to  ascertain 
and  promulgate  the  intention  of  the 
testator.  In  ascertaining  such  inten- 
tion, isolated  statements  and  clauses 
of  the  testament  will  not  be  selected, 
and  their  meaning  determined,  with- 
out any  relation  to  other  clauses  or 
parts  of  the  will.  The  courts  will  look 
to  the  whole  instrument,  and  construe 
each  part  with  relation  to  the  language 
used  in  other  parts  of  the  instrument, 
which  sheds  any  light  on  the  contro- 
verted portion  of  the  will.  Its  legal 
meaning  and  effect  cannot  be  varied 
by  parol  evidence.  Judy  v.  Gilbert,  11 
Ind.  96,  40  Am.  Rep.  289;  Lofton  v. 
Moore,  83  Ind.  112;  Hinds  v.  Hinds, 
85  Ind.  312;  Downie  v.  Buennagel,  94 
Ind.  228;  Becker  v.  Becker,  96  Ind. 
154;  Cooper  v.  Hayes,  96  Ind.  386; 
Pugh  V.  Pugh,  105  Ind.  552,  5  N. 
E.  673;  Millett  v.  Ford,  109  Ind.  159, 
8  N.  E.  917;  Commons  v.  Commons, 
115  Ind.  162,  16  N.  E.  820,  17  N.  E. 
271;    Daugherty  v.   Rogers,   119   Ind. 


254,  20  X.  E.  779,  3  L.  R.  A.  847n; 
Waters  v.  Bishop,  122  Ind.  516,  24  N. 
E.  161 ;  Mills  v.  Franklin,  128  Ind.  444, 
28  N.  E.  60;  Eubank  v.  Smiley,  130 
Ind.  393,  29  N.  E.  919;  Maris  v. 
Wolfe,  46  Ind.  App.  416,  92  N.  E.  661. 
'"  Sturgis  v.  Work,  122  Ind.  134,  22 
X.  E.  996,  17  Am.  St.  349.  A  latent 
ambiguity,  which  will  justify  the  ad- 
mission of  evidence  of  extrinsic  facts, 
is  one  which  may  arise,  not  upon  the 
face  of  the  will  itself,  but  from  facts 
therein  referred  to,  which  are  extrin- 
sic to  the  instrument.  Daugherty  v. 
Rogers,  119  Ind.  254.  20  X.  E.  779,  3 
L.  R.  A.  847n.  Whenever,  in  applying 
a  will  to  the  objects  or  subjects  therein 
referred  to,  extrinsic  facts  appear 
which  produce  a  latent  ambiguity,  the 
court  may  inquire  into  every  other 
material  extrinsic  fact  or  circumstance 
to  which  the  will  refers,  and  to  the  re- 
lation which  the  testator  occupied  to 
those  facts,  in  order  to  arrive  at  a 
correct  interpretation  of  the  language 
actually  employed.  Cruse  v.  Cunning- 
ham, 79  Ind.  402;  Black  v.  Richards, 
95  Ind.  184. 


§  502  CONSTRUCTION    OF    WILLS.  877 

the  devisor  made  his  will,  as  the  state  of  his  property,  his  family, 
and  the  like/^ 

11.  In  general,  implication  is  admissible  only  in  the  absence 
of,  and  not  to  control,  an  express  disposition, 

12.  An  express  and  positive  devise  cannot  be  controlled  by 
the  reason  assigned,  or  by  subsequent  ambiguous  words,  or  by 
inference  and  argument  from  other  parts  of  the  will. 

13.  The  inconvenience  or  absurdity  of  a  devise  is  no  ground 
for  varying  the  construction,  where  the  terms  of  it  are  unam- 
biguous, nor  is  the  fact  that  the  testator  did  not  foresee  all  the 
consequences  of  his  disposition  a  reason  for  varying  it.  But 
where  the  intention  is  obscured  by  conflicting  expressions,  it  is 
to  be  sought  rather  in  a  rational  and  consistent  than  an  irrational 
and  inconsistent  purpose.^" 

14.  The  rules  of  construction  cannot  be  strained  to  bring  a 
devise  within  the  rules  of  law,  but  it  seems  that  where  the  will 
admits  of  two  constructions,  that  is  to  be  preferred  which  will 
render  it  valid. 

15.  Favor  or  disfavor  to  the  object  ought  not  to  influence 
the  construction. 

16.  Words  in  general  are  to  be  taken  in  their  ordinary  and 
grammatical  sense,  unless  a  clear  intention  to  use  them  in  an- 
other sense  can  be  collected,  and  that  other  can  be  ascertained ; 
and  they  are  in  all  cases  to  receive  a  construction  which  will 
give  to  every  expression  some  effect,  rather  than  one  that  will 
render  any  of  the  expressions  inoperative;^^  and  of  two  modes 
of  construction,  that  is  to  be  preferred  which  will  prevent  a 
total  or  even  partial  intestacy.^* 

17.  \\^here  a  testator  uses  technical  words,  he  is  presumed 
to  employ  them  in  their  legal  sense,  unless  the  context  clearly 
indicates  the  contrary.^'^ 

"Jackson  v.  Hoover,  26  Ind.  511;  son  v.  White,  133  Ind.  614,  33  N.  E. 

Daugherty  v.  Rogers,  119  Ind.  254,  20  361,  19  L.  R.  A.  581. 

N.  E.  779,  3  L.  R.  A.  847n;  Corey  v.  "Groves  v.  Culph,  132  Ind.  186,  31 

Springer,  138  Ind.  506,  37  N.  E.  322.  N.  E.  569. 

"Jackson  V.  Hoover,  26  Ind.  511.  "  Ridgeway    v.    Lanphear,    99    Ind. 

"State  V.  Joyce,  48  Ind.  310;  Wil-  251. 


gyg  INDIANA  PROBATE  LAW.  §  502 

More  recent  decisions  have  so  relaxed  this  rule,  that  technical 
lanouage  is  now  given  a  more  reasonable  construction,  and  will 
receive  either  a  technical  or  popular  construction,  according  to 
circumstances. 

18.  Words  occurring  more  than  once  in  a  will  shall  be  pre- 
sumed to  be  used  always  in  the  same  sense,  unless  a  contrary 
intention  appear  from  the  context,  or  unless  the  words  be  applied 
to  a  different  subject." 

19.  Words  and  limitations  may  be  transposed,  supplied  or 
rejected,  where  warranted  by  the  immediate  context,  or  the 
general  scheme  of  the  will,  but  not  merely  on  a  conjectural  hy- 
pothesis of  the  testator's  intention,  however  reasonable,  in  oppo- 
sition to  the  plain  and  obvious  sense  of  the  language  of  the 
instrument. ^^ 

20.  Words  which  it  is  obvious  are  miswritten  may  be  cor- 
rected. 

21.  The  construction  is  not  to  be  varied  by  events  subsequent 
to  the  execution,  but  the  court,  in  determining  the  meaning  of 
particular  expressions,  will  look  to  possible  circumstances  in 
which  they  might  have  been  called  upon  to  affix  a  signification 
to  them. 

22.  Several  independent  devises,  not  grammatically  connected, 
or  united  by  the  expression  of  a  common  purpose,  must  be  con- 
strued separately  and  without  relation  to  each  other.  There 
must  be  an  apparent  design  to  connect  them. 

23.  Where  a  testator's  intention  cannot  operate  to  its  full 
extent,  it  shall  take  effect  as  far  as  possible. 

24.  A  testator  is  rather  to  be  presumed  to  calculate  on  the 
dispositions  of  his  will  taking  effect  than  on  the  contrary,  and 
accordingly  a  provision  for  the  death  of  devisees  will  not  be  con- 

"  State  Bank  v.  Ewing,  17  Ind.  68.  construction    will   be    adopted    which 

"Jackson  v.  Hoover,  26  Ind.  511;  casts    the    property    where    the    law 

State  V.  Joyce,  48  Ind.  310;  Butler  v.  would  cast  it  if  no  will  had  been  exe- 

Moore,  94  Ind.  359.     If  the  intent  of  cuted.     Kilgore   v.    Kilgore,   127   Ind. 

the  testator  is  doubtful,  and  two  con-  276,  26  N.  E.  56. 

structions  are  applicable  thereto,  that 


§  503  CONSTRUCTION    OF    WILLS.  879 

sidered  as  intended  to  provide  exclusively  for  lapse,  if  it  admits 
of  any  other  construction/^ 

General  rules  must  be  adhered  to,  but  as  all  cases  are  affected 
by  particular  circumstances  peculiar  to  themselves,  it  is  not 
always  easy  to  adapt  such  general  rules  to  purely  peculiar  cir- 
cumstances; however,  these  rules  above  must  be  a  guide  to 
truth  and  not  to  error,  and  it  will  be  found  that  a  wise  and 
judicious  application  of  them  will  effect  this.  A  mere  analogy 
should  not  have  other  weight  than  merely  to  assist  to  a  decision. 

But  when  there  are  provisions  in  a  will  which  are  conflicting 
and  inconsistent,  that  which  is  posterior  in  local  position  must  be 
taken  to  denote  the  last  intention  of  the  testator;  the  subsequent 
words  being  considered  to  denote  a  subsequent  intention.^'' 

§  503.  Rules  as  to  intention. — It  may  be  remarked  that  the 
rules  for  construction  of  wills  are  less  rigid  than  in  regard  to 
other  instruments,  the  principle  being  to  ascertain  the  most  ob- 
vious intent  of  the  testator.^" 

The  intention  of  the  testator  is  the  object  of  all  construction, 
but  this  general  proposition  is  subject  to  the  following  qualifi- 
cations : 

1.  The  intention  must  be  expressed  in  the  words  of  the  will.^^ 

2.  The  general  intent,  if  clear,  will  control  particular  terms. 

^"  A  testator  devised  land  to  his  down  by  the  doubtful  expressions  con- 
daughter  for  life,  with  remainder  tained  in  the  subsequent  clause  of  the 
over  in  fee  to  her  child  or  children,  in  will,  and  that  it  passed  to  the  testa- 
case  she  should  survive  him,  leaving  a  tor's  widow  upon  the  death  of  her 
child  or  children.  By  a  subsequent  great-grandson.  Bruce  v.  Bissell,  119 
clause  of  the  will  the  testator  devised  Ind.  525,  22  X.  E.  4,  12  Am.  St.  436; 
to  his  widow  a  life  estate  in  the  same  Aspy  v.  Lewis,  152  Ind.  493,  52  N.  E. 
land,  and  after  her  death  to  his  right  756. 

heirs  in  fee.  The  daughter  survived  ^^  Evans  v.  Hudson,  6  Ind.  293; 
the  testator,  but  died  soon  after,  leav-  Holdefer  v.  Teifel,  51  Ind.  343; 
ing  a  son,  who  also  died,  leaving  a  Critchell  v.  Brown,  72  Ind.  539;  Con- 
son.  The  latter  died  unmarried  and  over  v.  Stringer,  53  Ind.  248;  Butler 
without  issue,  leaving  the  testator's  v.  Moore,  94  Ind.  359. 
widow,  his  great-grandmother,  as  his  ""Kilgore  v.  Kilgore,  127  Ind.  276, 
next  of  kin.  Held,  that  the  daughter's  26  N.  E.  56. 

son  took  a  vested  remainder  in   fee,  ^^  Pugh  v.  Pugh,  105  Ind.  552,  5  N. 

which  was  in  nowise  affected  or  cut  E.  673. 


880  INDIANA    PROBATE   LAW.  §  503 

3.  Words  are  to  have  that  force  which  authority  gives  them, 
unless  the  contrary  is  clear. 

4.  Clearly  expressed  intention  controls  doubtful  construction. 

5.  Punctuation  is  not  authoritative  in  fixing  construction. 

6.  The  ^vill  should  be  upheld  and  made  reasonable  as  far  as 
practicable. 

7.  Courts  will  give  some  meaning  to  a  will,  unless  absolutely 
impossible. 

The  rule  is  universal  in  American  courts,  that  the  plain  and 
unambiguous  words  of  the  will  must  prevail,  and  are  not  to  be 
controlled  or  qualified  by  any  conjectural  or  doubtful  constinic- 
tions  growing  out  of  the  situation,  incumbrances  or  condition 
of  the  testator,  his  property  or  family.  Extraneous  facts  may 
aid  but  cannot  control  the  construction  of  words;  the  language 
should  receive  its  ordinary  interpretation  except  where  some 
other  is  necessarily  or  clearly  indicated ;  and  where  words  are 
equivocal,  that  meaning  should  be  adopted  which  tends  to  pro- 
mote consistency  in  preference  to  one  which  would  promote  in- 
consistency, and,  if  possible,  some  effect  should  be  given  to  each 
distinct  provision  of  the  will,  rather  than  that  it  should  be  ani- 
hilated.  The  court  should  give  effect  to  all  the  words  of  the  will 
and  not  violate  the  general  intent. "- 

Children  and  their  issue  should  not  be  disinherited  on  any 
doubtful  construction.-^ 

All  the  papers  constituting  the  testamentary  act  are  to  be  con- 
sidered ;  and  the  technical  meaning  of  words  is  to  be  followed 
only  where  it  reaches  the  intent. 

While  the  intention  of  the  testator  must  be  the  pole  star  in 

^  Where  a  testator  says  in  express  upheld.  A  will  will  not  be  so  con- 
terms  that  he  gives,  bequeaths  or  de-  strued  as  to  create  a  partial  intestacy 
vises  property,  real  or  personal,  with-  unless  the  language  used  compels  such 
out  limiting  the  interest  or  title,  or  a  construction.  The  presumption  is 
making  any  other  disposition  of,  ot  that  when  one  forms  an  intention  to 
reference  to  it,  his  intention  evidently  make  a  will  he  intends  to  dispose  of 
was  to  give  the  person  named  as  donee  all  his  estate.  Mills  v.  Franklin,  128 
or  devisee  the  same  right  and  title  to  Ind.  444,  28  N.  E.  60. 
the  property  as  he  himself  held,  and  ^  Aspy  v.  Lewis,  152  Ind.  493,  52  N. 
that  intention  must  be  respected  and  E.  756. 


§  504  CONSTRUCTION    OF    WILLS.  88 1 

seeking  his  meaning  in  his  will,  yet  in  the  ascertainment  of  such 
intention  courts  are  to  be  guided  by  certain  rules  of  construction 
that  have  become  as  thoroughly  settled  as  that  which  requires 
that  the  intention  should  be  the  true  guide.-* 

In  seeking  the  intention  courts  will  presume  in  the  absence  of 
any  language  in  the  will  repelling  such  presumption,  that  the 
words  and  expressions  used  by  the  testator  were  employed  in  the 
light  of  the  settled  meaning  which  the  law  attaches  to  such  words 
and  expressions.-^  And  technical  words  will  be  given  their  legal 
effect  unless,  from  subsequent  inconsistent  words,  it  is  very  clear 
that  the  testator  meant  otherwise,  and  the  law  will  even  supply 
words  where  to  do  so  does  not  oppose  the  manifest  intention  of 
the  testator.^^ 

Technical  rules  of  construction  will  also  be  made  to  give  way 
to  the  manifest  intention  of  the  testator,  where  such  intention 
can  be  enforced  without  contravening  the  well  established  rules 
of  law." 

§  504.  Rules  as  to  repugnancy. — The  following  rules  in 
reference  to  repugnancy  in  wills  are  fully  established : 

1.  Directing  a  legacy  to  be  made  a  charge  on  land  is  not  re- 
pugnant to  a  subsequent  direction  for  the  sale  of  the  same  land ; 
but  a  devise  in  fee  with  a  provision  never  to  sell  is  repugnant. 

2.  No  portion  of  a  will  is  to  be  rejected  for  repugnancy,  ex- 
cept from  necessity;  but  ever\^  portion  will  be  upheld,  if  possible; 
and  to  effect  this,  the  order  of  the  bequests  will  be  reversed.'^ 

=*  Fowler  V.  Duhme,  143  Ind.  .248,  42  Crawfordsville    Trust    Co.,    45    Ind. 

N.  E.  623 ;  Aneshaensel  v.  Twyman,  App.  64,  88  N.  E.  865. 

42  Ind.  App.  354,  85  X.  E.  788.  -''  Where  two  clauses  of  a  will  create 

■'  Taylor  v.  Stephens,  165  Ind.  200,  an  estate  in  the  several  devises  named, 

74  N.  E.  980;  Fowler  v.  Duhme,  143  and  they  are  not  united  grammatically 

Ind.  248,  42  N.  E.  623 ;  Clore  v.  Smith,  or   by  the   expression   of   a   common 

45  Ind.  App.  340,  90  N.  E.  917.  purpose,  each  clause  must  be  consid- 

^  Fowler  v.  Duhme,  143  Ind.  248,  42  ered    and    construed    separately,    and 

N.  E.  623;  Coulter  v.  Crawfordsville  without    relation    to    the   other,    even 

Trust  Co.,  45  Ind.  App.  64,  88  N.  E.  though  the  testator  may  have  had  the 

865.  same    intention    in    regard    to    both. 

■'  Stinson  v.  Rountree,  168  Ind.  169,  Bailey  v.   Sanger,  108  Ind  264,  9  N. 

78  N.  E.  331,  80  N.  E.  149;  Coulter  v.  E.  ''59. 

56 — Pro.  L.wv. 


882  INDIANA    PROBATE    LAW.  ^  5O5 

3.  General  words  are  controlled  by  those  more  specitic.  and 
words  are  not  to  be  rejected  for  repugnancy  except  from  neces- 
sity. But  if  there  are  repugnant  words  contravening  the  general 
sense  or  intent  of  the  will,  such  words  must  be  rejected. 

4.  In  cases  of  irreconcilable  repugnancy,  the  latest  portion  of 
the  will  must  stand. 

Where  repugnancy  appears  in  a  will  evidence  is  admissible  to 
show  the  situation  of  the  parties,  their  surroundings  and  circum- 
stances, and  to  identify  the  property  devised,  and  if,  after  con- 
sideration of  such  evidence,  the  court  is  unable  from  the  face 
of  the  will,  to  determine  the  testator's  intention  such  will  must 
be  held  void.-" 

§  505,  Rules  for  supplying  words. — The  following  general 
rules  are  applicable  for  supplying  words : 

1.  Words  omitted  may  be  supplied  by  intendment;  but  this 
is  not  done  where  there  is  ground  for  doubt  in  regard  to  the 
words.^" 

2.  Words  omitted  may  be  supplied  by  reference  to  the  correl- 
ative part  of  the  will. 

3.  The  name  of  a  devisee  may  be  supplied  by  clear  intend- 
ment.    Even  the  name  and  the  devise  itself  may  be  so  supplied. ^^ 

4.  The  terms  of  one  devise  cannot  be  drawn  into  the  con- 
struction of  another  wholly  distinct.  The  correspondence  must 
amount  to  identity.  The  court  will  not  cut  down  a  devise  in 
a  codicil  by  a  resort  to  the  will. 

5.  When  the  sections  of  a  will  are  numerically  arranged,  each 
section  is  distinct. 

6.  In  the  American  courts  almost  any  latitude  of  construc- 
tion is  allowed,  to  meet  the  clear  intent  of  the  will.  ''Die  without 
issue"  has  been  construed  to  mean  "without  issue  living."'  And 
what  seems  a  life  estate  in  terms  may  be  construed  a  remainder 
in  fee.^^ 

=^Tobin  V.  Tobin,  163  Ind.  240,  69  Ind.  App.  356,  29  N.  E.  924.  50  Am. 

N.  E.  440;  Page  on  Wills,  §§  48,  822.  St.  276n;  Holmes  v.  Mead,  52  N.  Y. 

^Butler  V.   Moore,  94  Ind.  359;    1  332. 
Redfield  on  Wills,  p.  453.  '"  The  word  "estate"  in  a  will  may, 

^^  Chappell  V.  Missionary  Soc.  &c.,  3  if  it  is  necessary  to  do  so  in  order  to 


§  5o6  CONSTRUCTION    OF    WILLS.  883 

The  cases  show  that  words  cannot  be  supplied  unless  it  is  clear 
that  there  has  been  an  omission,  and  what  that  precise  omission 
was. 

Words  of  a  will  may  be  transposed  when  such  transposition 
will  render  the  will  clear  without  changing  its  natural  import; 
and  the  court  may  reach  the  obvious  intent  of  the  testator  by 
transposition.  Words  of  local  description  applying  to  one  de- 
vise may  be  referred  to  another,  and  vice  versa;  but  no  liberty 
of  transposition  or  supplying  of  words  is  allowed,  unless  in  fur- 
therance of  the  most  unquestionable  purpose  of  the  testator.^^ 

§  506.  As  to  extrinsic  evidence. — In  the  interpretation  and 
construction  of  the  last  wills  of  the  decedent,  the  law  requires 
that  the  intention  of  the  testator  shall  be  ascertained,  and  if  possi- 
ble, carried  into  effect;  but  this  intention  must  be  shown  in  some 
way  by  the  will  itself,  and  not  wholly  by  facts  outside  of  the 
will.^*  Extrinsic  evidence  is  not  admitted  in  any  case,  with  a 
view  of  reforming  or  adding  anything  to  the  will,  but  for  the 
purpose  of  arriving  at  the  real  intent  of  the  testator,  by  identify- 

carry  out  the  intention  of  the  testator,  lar  signification,  and  will  not  be  con- 
be  construed  to  mean  one  species  of  strued  to  include  grandchildren,  when 
property  only.  It  does  not  always  there  are  other  persons  in  existence, 
mean  both  real  and  personal  property,  at  the  date  of  the  will  or  when  the 
Goudie  V.  Johnston,  109  Ind.  427,  10  bequest  or  legacy  takes  effect,  answer- 
N.  E.  296;  Crew  v.  Dixon,  129  Ind.  ing  to  such  meaning  of  the  term.  West 
85,  27  N.  E.  728.  The  words  "to  be  v.  Rassman,  135  Ind.  278,  34  N.  E.  991. 
divided  equally"  apply  as  well  to  a  di-  "^Jackson  v.  Hoover,  26  Ind.  511. 
vision  among  classes  as  among  indi-  There  is  no  division  in  the  authorities 
viduals.  Henry  v.  Thomas,  118  Ind.  upon  the  proposition  that  courts  can- 
23,  20  N.  E.  519.  Where  a  testator,  in  not,  except  in  the  clearest  cases, 
his  will,  provided  that  all  his  estate  change  by  transposition,  aUeration, 
should  go  to  his  widow,  and  at  her  subtraction  or  substitution,  the  words 
death  or  marriage  his  son  was  to  have  of  a  will,  but  must  take  them  as  they 
forty  acres,  and  the  residue  of  his  are  written.  Shimer  v.  Mami,  99  Ind. 
land  was  to  be  "divided  equally  190,  50  Am.  Rep.  82;  Rupp  v.  Eberly, 
amongst  all  his  legal  heirs,"  the  son,  79  Pa.  St.  141;  Yearnshaw's  Appeal, 
having  taken  forty  acres,  was  not  also  25  Wis.  21 ;  Gibson  v.  Seymour,  102 
entitled  to  a  share  of  the  residue  as  Ind.  485,  2  N.  E.  305,  52  Am.  Rep.  688. 
one  of  the  legal  heirs.  Griffin  v.  Ulen,  "  Tyner  v.  Reese,  70  Ind.  432 ; 
139  Ind.  565,  39  N.  E.  254.  The  term  Daugherty  v.  Rogers,  119  Ind.  254,  20 
"children,"  when  used  in  a  will,  will  N.  E.  779,  3  L.  R.  A.  847n;  Pugh  v. 
be  construed  in  its  ordinary  and  popu-  Pugh,  105  Ind.  552,  5  N.  E.  673. 


884 


INDIANA    PROBATE    LAW. 


§506 


ing  the  person  or  thing  generally  described,  and  to  remove  the 
ambiguity  resulting  from  the  erroneous  particular  description.^' 

The  following  propositions  on  the  subject  of  the  admissibility 
of  extrinsic  evidence  to  aid  in  the  construction  of  wills  are  taken 
from  Wigram's  work  on  Extrinsic  Evidence,  and  are  of  great 
value  and  importance : 

I.  A  testator  is  always  presumed  to  use  the  words  in  which 
he  expresses  himself  according  to  their  strict  and  primary  accep- 
tation, unless  from  the  context  of  the  will  it  appears  that  he  has 
used  them  in  a  different  sense,  in  which  case  the  sense  in  which 
he  thus  appears  to  use  them  will  be  the  sense  in  which  they  are  to 
be  construed.^'' 


"  Sturgis  V.  Work,  122  Ind.  134,  22 
N.  E.  996,  17  Am.  St.  349 ;  Daugherty 
V.  Rogers,  119  Ind.  254,  20  X.  E.  779, 
3  L.  R.  A.  847n.  jNIistakes  in  a  will 
cannot  be  corrected  by  courts,  except 
in  a  case  where  the  mistake  is  appar- 
ent on  the  face  of  the  will.  It  cannot 
be  done  by  extrinsic  evidence.  Judy 
V.  Gilbert,  11  Ind.  96,  40  Am.  Rep. 
289n ;  Cruse  v.  Cunningham,  79  Ind. 
402;  Funk  v.  Davis.  103  Ind.  281,  2  N. 
E.  739;  Pocock  v.  Redinger,  108  Iml. 
573,  9  N.  E.  473,  58  Am.  Rep.  71n; 
Priest  V.  Lackey,  140  Ind.  399,  39  X. 
E.  54.  Where  a  will  itself  discloses 
the  fact  that  there  was  a  mistake  in 
drafting  the  instrument,  or  there  are 
sufficient  indications  of  a  latent  am- 
biguity, it  is  not  error  to  allow  extrin- 
sic evidence  to  be  introduced  for  the 
purpose  of  explaining  and  arriving  at 
the  intention  of  the  testator.  Groves  v. 
Culph,  132  Ind.  186,  31  N.  E.  569.  Ver- 
bal declarations  of  a  testator  are  not 
competent  evidence  to  show  a  mistake 
in  a  will,  but  facts  and  circumstances 
are.  Daugherty  v.  Rogers,  119  Ind. 
254,  20  N.  E.  779,  3  L.  R.  A.  847n. 
Extrinsic  evidence  is  not  admissible 
to  alter,  detract  from  or  add  to  the 


terms  of  a  will;  nor  is  parol  evidence 
admissible  to  correct  a  supposed  mis- 
take in  a  will.  Bunnell  v.  Bunnell,  IZ 
Ind.  163;  Price  v.  .Price,  89  Ind.  90; 
Lamb  v.  Lamb.  105  Ind.  456,  5  N.  E. 
171;  Duncan  v.  Wallace,  114  Ind.  169, 
16  N.  E.  137. 

"  A,  desiring  to  buy  the  "northeast 
quarter  of  the  southeast  quarter"  of  a 
certain  section  of  land,  borrowed  from 
his  wife  money  to  pay  therefor,  agree- 
ing to  devise  the  land  to  her  for  life, 
with  remainder  to  her  children ;  and 
he  made  his  will,  intending  to  devise 
such  land  to  her ;  but  by  mistake  the 
land  was  described  in  the  will  as  the 
"northeast  quarter  of  the  southwest 
quarter"  of  said  section,  which  tract 
the  testator  never  owned.  Held,  that 
there  was  no  mistake  apparent  on  the 
face  of  the  will,  and  that  parol  evi- 
dence was  not  admissible  to  show  that 
the  testator  intended  to  describe  a  dif- 
ferent tract  from  that  described  in  the 
will.  Judy  V.  Gilbert,  11  Ind.  96,  40 
Am.  Rep.  289n.  When  the  mistake  is 
shown  by  the  words  of  the  will,  when 
applied  to  the  subject-matter  upon 
which,  as  its  language  discloses,  it  was 
intended  to  operate,  such  mistake  may 


§  506  CONSTRUCTION    OF    WILLS.  885 

2.  Where  there  Is  nothing  in  the  context  of  a  will  from  which 
it  is  apparent  that  a  testator  has  used  the  words  in  which  he  has 
expressed  himself  in  any  other  than  their  strict  and  primary 
sense,  and  where  his  words  so  interpreted  are  sensible  with  refer- 
ence to  extrinsic  circumstances,  it  is  an  inflexible  rule  of  construc- 
tion that  the  words  of  the  will  shall  be  interpreted  in  their  strict 
and  primar}^  sense  and  in  no  other,  although  they  may  be  capable 
of  some  popular  or  secondary  interpretation,  and  although  the 
most  conclusive  evidence  of  intention  to  use  them  in  such  popular 
or  secondary  sense  be  tendered. 

3.  Where  there  is  nothing  in  the  context  of  a  will  from  which 
it  is  apparent  that  a  testator  has  used  the  words  in  which  he  has 
expressed  himself  in  any  other  than  their  strict  and  primary  sense, 
but  his  words  so  interpreted  are  insensible  with  reference  to  ex- 
trinsic circumstances,  a  court  of  law  may  look  into  the  extrinsic 
circumstances  of  the  case  to  see  whether  the  meaning  of  the 
words  be  sensible  in  any  popular  or  secondary  sense  of  which, 
with  reference  to  these  circumstances,  they  are  capable. 

4.  Where  the  characters  in  which  the  will  is  written  are  diffi- 
cult to  be  deciphered,  or  the  language  of  the  will  is  not  under- 
stood by  the  court,  the  evidence  of  persons  skilled  in  deciphering 
writing,  or  who  understand  the  language  in  which  the  will  is  writ- 
ten, is  admissible  to  declare  what  the  characters  are,  to  inform  the 
court  of  the  proper  meaning  of  the  words. 

5.  For  the  purpose  of  determining  the  object  of  a  testator's 
bounty,  or  the  subject  of  disposition,  or  the  quantity  of  interest 
intended  to  be  given  by  his  will,  a  court  may  inquire  into  every 
material  fact  relating  to  the  person  who  claims  to  be  interested 
under  the  will,  and  to  the  property  claimed  as  the  subject  of  dis- 
position, and  to  the  circumstances  of  the  testator  and  of  his  fam- 
ily and  affairs,  for  the  purpose  of  enabling  the  court  to  identify 

be  obviated  by  contrnction.  Priest  v.  Spilman,  25  Ind.  95 ;  Black  v.  Rich- 
Lackey,  140  Ind.  399,  39  N.  E.  54;  Po-  ards,  95  Ind.  184;  Rook  v.  Wilson, 
cock  V.  Redinger,  108  Ind.  573,  9  X.  E.  142  Ind.  24,  41  N.  E.  311,  51  Am.  St. 
473,  58  Am.  Rep.  71n;   Cleveland  v.  163. 


886 


INDIANA    PROBATE   LAW. 


506 


the  person  or  thing  intended  by  the  testator,  or  to  determine  the 
quantity  of  interest  he  has  given  by  his  will." 

6.  Where  the  words  of  the  will,  aided  by  evidence  of  the  ma- 
terial facts  of  the  case,  are  insufficient  to  determine  the  testator's 
meaning,  no  evidence  will  be  admissible  to  prove  what  the  testator 
intended,  and  the  will  will  be  void  for  uncertainty.^'* 

7.  Notwithstanding  the  above  rule  of  law  which  makes  a  will 
void  for  uncertainty,  courts  of  law  in  certain  special  cases  admit 
extrinsic  evidence  of  intention  to  make  certain  the  person  or  thing 
intended,  where  the  description  in  the  will  is  insufficient  for  the 
purpose."" 


^'  Hartwig  v.  Schiefcr,  147  Ind.  64, 
46  N.  E.  75;  Skinner  v.  Harrison  Tp., 
116  Ind.  139,  18  N.  E.  529,  2  L.  R.  A. 
137;  Elliott  v.  Elliott,  117  Ind.  380,  20 
N.  E.  264,  10  Am.  St.  54.  Where  a 
testatrix,  a  member  of  the  Church  of 
Christ,  made  a  bequest  to  the  "Chris- 
tian Missionary  Society  of  this  state," 
it  was  competent  to  show  by  extrinsic 
evidence  that  the  Missionary  Society 
of  the  Churches  of  Christ  in  Indiana 
was  the  society  intended  in  said  be- 
quest. Chappell  V.  Missionary  Soc,  3 
Ind.  App.  356,  29  N.  E.  924,  50  Am. 
St.  276n. 

^  Where  a  testator  devises  to  his 
two  daughters  a  tract  of  land  de- 
scribed as  the  "west  half  of  the  south- 
west quarter"  of  a  certain  section, 
township  or  range,  which  he  never 
owned,  owning  instead  the  west  half 
of  the  northeast  quarter  of  the  above 
mentioned  section,  township  and 
range,  the  devisees  will  not  be  per- 
mitted to  show  the  facts  as  stated  as 
a  basis  for  the  inference  that  the  tes- 
tator must  have  intended  to  dispose  of 
the  property  actually  owned  by  him, 
and  that  the  description  as  found  in 
the  will  was  the  result  of  inadvertence 
or  mistake.  Sturgis  v.  Work,  122  Ind. 
134,  22   N.   E.  996,   17   Am.    St.   349. 


Where  one  item  of  a  will  devised  the 
house  and  lot  on  which  the  testator 
resided  "being  parts  of  lots  numlier 
15  and  16,"  &c.,  to  his  wife  during  her 
natural  life,  and  a  subsequent  item  of 
the  will  devised  "the  same  lot  number 
15  so  devised  to  my  said  wife  during 
her  lifetime"  to  the  testator's  young- 
est daughter,  and  '"to  her  heirs  in  fee 
simple  forever"  there  is  such  a  mis- 
take apparent  on  the  face  of  the  will 
as  will  permit  the  introduction  of  ex- 
trinsic evidence  to  show  that  the  testa- 
tor intended  to  devise  the  same  prop- 
erty to  his  daughter  in  fee  that  he  had 
in  the  previous  item  of  the  will  de- 
vised to  his  wife  for  life.  Groves  v. 
Culph,  132  Ind.  186,  31  N.  E.  569. 

™A  will  contained  this  provision: 
"As  to  my  real  estate,  I  dispose  of  it 
as  follows :  I  own  the  east  half  of  the 
northwest  quarter,"  &c.,  "and  I  here- 
by give  and  bequeath  the  same  to  my 
son,"  &c.  The  testator  did  not  own 
the  east  half  of  the  northwest  quarter, 
but  did  own  the  west  half.  Held,  that 
as  the  will  itself  showed  a  mistake,  it 
would  be  made  to  operate  upon  the 
land  intended  to  be  devised.  Pocock 
V.  Redinger,  108  Ind.  573,  9  X.  E.  473, 
58  Am.  Rep.  71n.  An  alleged  mistake 
in  the  description  of  land  devised  can- 


§  507  CONSTRUCTION    OF    WILLS.  887 

A  latent  ambiguity  which  will  authorize  the  admission  of  ex- 
trinsic evidence  is  one  which  may  arise  not  from  the  face  of  the 
will,  but  from  facts  referred  to  in  the  will  which  are  outside  the 
will  itself.*'^ 

The  rule  is  also  well  settled  that  when  a  latent  ambiguity  is 
disclosed  by  extrinsic  evidence,  it  may  be  removed  by  extrinsic 
evidence. ^^ 

§  507.  As  to  parol  evidence. — But  parol  or  other  outside 
evidence  is  not  admissible  to  alter,  detract  from  or  add  to  the 
terms  of  a  will,  nor  to  correct  supposed  mistakes  therein.  A  court 
may  correct  a  mistake  which  is  apparent  upon  the  face  of  the  will 
itself ;  further  than  this  it  cannot  go.  It  is  the  duty  of  the  courts 
to  construe  and  enforce  wills  as  they  are  written;  any  effort  to 
reform  or  correct  mistakes  therein  upon  outside  evidence  would 
practically  destroy  the  will  of  the  testator  and  supply  the  court's 
construction  thereof  in  its  stead.'*" 

In  some  cases  parol  or  other  extrinsic  evidence  may  be  re- 
sorted to,  to  prove  the  intention  of  the  testator  by  showing  the 

not  be  corrected  by  the  admission  of  presumption  that  the  testator  intended 

extrinsic  evidence,  unless  the  language  to  devise  his  own  real  estate  and  not 

of  the  will  itself  furnishes  the  basis  that  of  another,  the  court,  in  Pate  v. 

of  the  correction ;  and  where,  in  vio-  Bushong,  161  Ind.  533,  69  N.  E.  291, 

lation  of  this  rule  a  judgment  is  ren-  100   Am.    St.   287,   63    L.   R.   A.   593, 

dered  so  correcting  a  description  in  a  held  the  description  sufficient  to  pass 

will,   a  complaint   to  review   will   lie.  title  to  the  real  estate  actually  owned 

Funk  V.  Davis,  103  Ind.  281,  2  X.  E.  by  the  testator,  and  on  this  point  over- 

739.  ruling  the  cases  of  Judy  v.  Gilbert,  11 

'"  Daugherty  V.  Rogers,  119  Ind.  254,  Ind.  96,  40  Am.  Rep.  289n;  Funk  v. 

20  X.  E.  779,  3  L.  R.  A.  847n ;  Priest  Davis,  103  Ind.  281,  2  N.  E.  739 ;  Stur- 

v.  Lackey,  140  Ind.  399,  39  N.  E.  54;  gis  v.  Work,  122  Ind.  134,  22  N.  E. 

Groves  v.  Culph,  132  Ind.  186,  31  N.  E.  996,  17  Am.  St.  349. 
569.  *- Bunnell  v.   Bunnell,  12>  Ind.   163; 

"Pate  v.  Bushong,  161  Ind.  533,  69  McAllister  v.  Butterfield,  31  Ind.  25; 

N.  E.  291,  100  Am.  St.  287,  63  L.  R.  Rapp  v.  Reehling,  124  Ind.  36,  23  N. 

A.  593;  Whiteman  v.  Whiteman,  152  E.  Ill,  7  L.  R.  A.  498;  Judy  v.  Gilbert, 

Ind.  263.  53  X.  E.  225 ;  Patch  v.  White,  11  Ind.  96,  40  Am.  Rep.  289n ;  Funk  v. 

117  U.  S.  210,  29  L.  ed.  860,  6  Sup.  Ct.  Davis,  103  Ind.  281,  2  X.  E.  739;  Sim- 

617,  710.  By  holding  that  extrinsic  evi-  mons  v.  Beazel,  125  Ind.  362,  25  N.  E. 

dence   was   admissible   to   remove   an  344;   Judy  v.   Williams,  2   Ind.   449; 

ambiguity  in  the  particular  description  Grimes  v.  Harmon,  35  Ind.  198,  9  Am. 

of  land  in  a  will,  and  by  following  the  Rep.  690;  Sturgis  v.  Work,  122  Ind. 


888  INDIANA  PROBATE  LAW.  §  507 

meaning  of  the  language  used  and  the  subject  to  which  it  alludes, 
and  for  the  purpose  of  determining  the  object  of  the  testator's 
bounty,  the  subject  of  disposition,  or  the  quantity  of  interest  in- 
tended to  be  given  by  the  will.^^ 

Parol  evidence  is  not  admissible  to  explain  a  will  that  is  free 
from  ambiguity/* 

Parol  evidence  is  admissible  in  order  to  place  the  court  in  the 
position  of  the  testator,  but  not  to  render  any  extrinsic  fact  part 
of  the  will.  Such  evidence  cannot  supply  any  defect,  or  accident, 
or  omission,  but  it  may  be  shown  that  part  of  the  instrument  is 
not  the  testator's  will/" 

The  following  are  instances  in  which  parol  evidence  is  not  ad- 
missible in  construing  wills : 

1.  Filling  up  a  total  blank  in  a  will. 

2.  Inserting  a  devise  omitted  by  mistake. 

3.  Proving  what  was  intended  by  an  unintelligible  word. 

4.  Providing  that  a  thing  in  substance  different  from  that  de- 
scribed in  the  will  was  intended. 

5.  Changing  the  person  described. 

6.  Reconciling  conflicting  clauses  in  a  will. 

7.  Proving  to  which  of  two  antecedents  a  given  relative  was 
intended  to  refer. 

8.  Explaining  or  altering  the  estate. 

9.  Proving  which  of  several  testamentary  guardians  was  in- 
tended to  have  the  actual  care  of  the  children. 

10.  Proving  what  was  to  be  done  with  the  interest  of  a  legacy 
until  time  of  payment. 

11.  Proving  that  by  a  bequest  of  the  residue  a  particular  sum 
was  intended. 


134,  22  N.  E.  996,  17  Am.  St.  349 
Waters  v.  Bishop,  122  Ind.  516,  24  N 
E.  161. 

*^  Cruse  V.  Cunningham,  79  Ind.  402 
Grimes  v.  Harmon,  35  Ind.  198,  9  Am 
Rep.  690;  Jackson  v.  Hoover,  26  Ind 
511;  Wigram  on  Wills,  p.  51;  Jenkins     Ind.  163 
V.   Compton,   123   Ind.   117,  23  X.   E. 
1091. 


"Frain  v.  Alillison,  59  Ind.  123; 
Rapp  V.  Reehling,  124  Ind.  36,  23  N. 
E.  m,  7  L.  R.  A.  498. 

*^McAlister  v.  Butterfield,  31  Ind. 
25 ;  Grimes  v.  Harmon,  35  Ind.  198,  9 
Am.  Rep.  690;  Bunnell  v.  Bunnell,  11 


50/ 


CONSTRUCTION    OF    WILLS.  889 


12.  Construing  a  will  with  reference  to  the  instructions  given 
for  preparing  it. 

13.  Proving  that  an  executor  was  to  be  a  trustee  of  the  resi- 
due for  the  next  of  kin. 

14.  Proving  that  an  executor  was  intended  to  take  beneficially 
where,  on  the  face  of  the  will,  it  was  conclusively  apparent  that 
he  was  intended  to  be  a  trustee. 

15.  Controlling  a  technical  rule  of  verbal  construction. 

16.  Explaining  the  sense  in  which  the  word  "relations"  was 
intended  to  be  used. 

17.  What  a  testator  intended  to  give  by  the  word  "plate." 

18.  What  a  testator  intended  to  devise  by  the  words  "lands 
out  of  settlement." 

19.  Proving  that  a  portion  was  intended  to  be  a  satisfaction 
of  a  bequest  of  the  residue. 

20.  That  a  legacy  in  a  codicil  was  intended  to  be  a  substitu- 
tion for  a  legacy  in  the  will. 

21.  Proving  that  a  devise  to  a  wife  was  intended  to  be  in  bar 
of  dower. 

22.  Supplying  a  use  or  trust. 

23.  Ascertaining  whether  the  real  estate  was  charged  with 
the  payment  of  debts  in  aid  only  or  in  exoneration  of  the  personal 
estate. 

24.  That  the  intention  in  appointing  a  debtor  to  be  executor 
was  a  release  of  the  debt. 

25.  Rebutting  a  presumption  which  arises  from  the  construc- 
tion of  words  simply  qua  words. 

26.  Raising  a  presumption. 

27.  Increasing  a  legacy. 

28.  Increasing  that  which  is  defective. 

29.  Adding  a  legacy  to  a  will. 

30.  Proving  what  interest  a  legatee  was  intended  to  take  in 
a  legacy. 

31.  Ascertaining  an  intention  which,  on  the  face  of  the  will, 
was  indeterminate. 


890  INDIANA    PKOUATE    LAW.  §  508 

1,2.  Proving  that  words  of  limitation  were  intended  to  be  con- 
strued as  words  of  purchase. 

^^.  Proving  that  executors,  who  had  acted  in  part  and  tlien 
renounced,  were  intended  by  the  testator  to  act  only  to  that  ex- 
tent to  which  they  acted. 

34.  Proving  that  the  testator  meant  to  use  general  words  in 
this  or  that  particular  sense. 

Parol  evidence  is  always  admissible  to  show  fraud,  deception, 
or  undue  influence  in  obtaining  a  will,  and  cases  allow  a  very  ex- 
tensive range  of  testimony  in  support  of,  and  in  reply  to,  evidence 
tending  to  show  fraud,  undue  influence  and  weakness  of  mind  as 
the  moving  and  proximate  causes  of  a  will. 

It  is  said  that  parol  evidence  cannot  be  admitted  to  supply  or 
contradict,  enlarge  or  vary  the  words  of  a  will,  nor  to  explain  the 
intention  of  the  testator,  except  in  two  specified  cases :  i.  Where 
there  is  a  latent  ambiguity  arising  dehors  the  will  as  to  the  person 
or  subject  meant  to  be  described ;  2.  To  rebut  a  resulting  trust, 
and  all  the  cases  will  be  found  to  profess  to  proceed  on  one  or  the 
other  of  these  grounds.''" 

.^  508.  Miscellaneous  rules. — W  here  a  will  makes  a  dispo- 
sition of  all  of  a  testator's  estate,  real  and  personal,  except  the  fee 
to  the  real  estate,  such  fee  is  cast  upon  the  testator's  heirs  as  in 
case  of  his  intestacy,  and  is  governed  by  the  statute  regulating 
descents.*^ 

Clauses  in  a  will  whicli  are  entirely  independent  of  each  other 
must  be  considered  and  construed  separately  and  without  rela- 
tion to  each  other,  even  though  it  may  seem  that  the  testator  had 
the  same  intention  in  regard  to  them."*® 

"Marvin  v.  Marvin,  1  Johns.  Ch.  (N.  *"  Bailey  v.   Sanger,   108  Ind.  264,  9 

Y.)  231;  AIcAIister  v.  BuUerheld,  31  N.  E.  159;  3  Jarman  on  Wills,  p.  708. 

Ind.  25;  Hartwig  v.  Schiezer,  147  Ind.  Where  one  clause  of  a  will  gives  an 

64,  46  X.  E.  75 ;  Pate  v.  Bushong,  161  estate    in    clear    and    decisive    terms, 

Ind.  533,  69  N.  E.  291,  100  Am.  St.  287,  such  estate  cannot  be  taken  away  or 

63  L.  R.  A.  593 ;  Tobin  v.  Tobin,  163  cut   down  by  any   subsequent  words 

Ind.  240,  69  N.  E.  440.  that  are  not  as  clear  and  decisive  as 

"  Thomas  v.  Thomas,  108  Ind.  576,  those  giving  it.    Bailey  v.  Sanger,  108 

9  N.  E.  457;  Parks  v.  Kimes,  100  Ind.  Ind.  2M,  9  N.  E.  159;  Hochstedler  v. 

148.  Hochstedler,    108   Ind.   506,  9  N.   E. 


5o8 


CONSTRUCTION    OF    Vv'ILLS. 


891 


A  will  executed  on  Sunday  is  valid,  and  does  not  come  within 
the  prohibition  making  it  a  penal  offense  to  engage  in  common 
labor,  or  in  one's  usual  avocation  on  that  day.^^ 

Where  an  estate  is  given  in  one  clause  in  clear  and  decisive 
terms  it  cannot  be  taken  away  or  cut  down  by  any  subsequent 
clause  that  is  not  as  clear  and  decisive  as  the  one  in  which  the 

estate  is  given. ^"^ 

It  is  also  a  rule  that  where  an  estate  is  given  to  two,  if  the  part 
^iven  to  one  fail  for  any  cause,  that  part,  without  a  fresh  disposi- 
tion of  it,  will  not  go  to  increase  the  part  given  the  other,  but  will 
fall  into  the  residue,  or  go  to  the  next  of  kin.^' 

It  is  said  that,  ''any  construction  of  a  will  which  will  result 
in  a  partial  intestacy,  is  to  be  avoided  unless  the  language  of  the 
will  compels  it ;  for  the  very  fact  of  making  a  will  is  strong  evi- 
dence of  the  testator's  purpose  to  dispose  of  his  whole  estate."-" 


467 ;  Goudie  v.  Johnston,  109  Ind.  427, 
10  N.  E.  296;  O'Boyle  v.  Thomas,  116 
Ind  243,  19  X.  E.  112;  Bruce  v.  Bis- 
sell,  119  Ind.  525,  22  N.  E.  4,  12  Am. 
St.  436;  Siurgis  v.  Work,  122  Ind.  134, 
22  X  E  996,  17  Am.  St.  349 ;  Ross  v. 
Ross,  135  Ind.  367,  35  X.  E.  9.  In 
the  construction  of  a  clause  of  a  will 
the  court  will  look  to  the  whole  in- 
strument, if,  by  so  doing,  any  light 
will  be  thrown  upon  the  particular 
clause  in  dispute  or  to  be  construed. 
Kilgore  V.  Kilgore,  127  Ind.  276,  26  X. 
E.  56. 

^'Rapp  V.  Reehling,  124  Ind.  36,  23 
N.  E.  Ill,  1  L.  R.  A.  498. 

"  Sturgis  V.  Work,  122  Ind.  134,  22 
X.  E.  996,  17  Am.  St.  349;  Simmons 
V.  Beazel,'l25  Ind.  362,  25  N.  E.  344; 
Bruce  v.  Bissell,  119  Ind.  525,  22  X.  E. 
4,  12  Am.  St.  436;  Bailey  v.  Sanger, 
108  Ind.  264,  19  X.  E.  159.  Where  the 
same  clause  of  a  will  operates  on  both 
real  and  personal  property,  if  the  be- 
quest of  real  estate  vests,  the  same 
construction  will  be  applied  to  the 
personal  estate.     Heilman  v.  Heilman, 


129  Ind.  59,  28  X.  E.  310.  The  law 
favors  the  vesting  of  estates  and  will 
construe  the  terms  of  a  will  as  creat- 
ing a  vested  estate,  if  possible.  Da- 
vidson V.  Koehler,  76  Ind.  398 ;  Harris 
V.  Carpenter,  109  Ind.  540,  10  X.  E. 
422;  Davidson  v.  Bates,  111  Ind.  391, 
12  X.  E.  687;  Amos  v.  Amos,  117  Ind. 
11,  19  X.  E.  543;  Bruce  v.  Bissell,  119 
Ind.  525,  22  X.  E.  4,  12  Am.  St.  436; 
Heilman  v.  Heilman,  129  Ind.  59,  28 
X.  E.  310;  Crew  v.  Dixon,  129  Ind. 
85,  27  X.  E.  728. 

"  Sturgis  V.  Work,  122  Ind.  134,  22 
X.  E.  996,  17  Am.  St.  349;  2  Jarman 
on  Wills,  p.  368. 

"2  Redfield  on  Wills,  442;  Cate  v. 
Cranor,  30  Ind.  292;  Spurgeon  v. 
Scheible,  43  Ind.  216;  Roy  v.  Rowe,  90 
Ind.  54.  Where  a  testator  disposes  of 
real  estate,  and  thereafter  conveys  it, 
the  provisions  of  the  will  relating 
thereto  are  rendered  inoperative.  Sim- 
mons V.  Beazel,  125  Ind.  362,  25  X.  E. 
344.  A  will  that  devises  to  one  per- 
son all  the  land  of  which  he  or  she 
may  die  possessed,  cannot  be  defeated 


892 


INDIANA    PROBATE    LAW. 


S5 


08 


When  a  person  makes  a  will  the  presumption  is  that  he  intends 
to  dispose  of  all  his  property,  unless  it  is  rebutted  by  the  terms 
of  the  will  or  other  evidence  to  the  contrary." 

Where  a  testator,  in  devising  his  real  estate,  has  identified  and 
designated  it  in  the  will  by  a  general  description,  and  makes  a 
mistake  in  attempting  to  specifically  describe  it,  such  mistake  may 
be  corrected  and  made  to  operate  upon  the  land  intended  to  be 
specifically  described.  The  testator's  attempt  at  a  specific  descrip- 
tion of  the  land  does  not  render  nugatory  the  general  descrip- 
tion.*^' 

Codicils  are  to  be  construed  in  connection  with  the  wills,  and 
when  there  is  a  conflict  the  codicil  will  control." 

If  a  will  makes  reference  to  any  other  instrument,  such  instru- 
ment may  be  examined  to  assist  in  arriving  at  the  intention  of 
the  testator."" 

A  will  must  be  construed  according  to  the  law  in  force  at  the 


because  of  an  error  in  the  subsequent 
description  of  the  land.  Priest  v. 
Lackey,  140  Ind.  399,  39  N.  E.  54; 
Skinner  v.  Spann,  —  Ind.  — ,  95  N.  E. 
243. 

"Tobin  V.  Tobin,  163  Ind.  240,  69 
N.  E.  440;  Pate  v.  Bushong.  161  Ind 
533,  69  N.  E.  291,  100  Am.  St.  2B7,  63 
L.  R.  A.  593;  Korf  v.  Gerichs,  145 
Ind.  134,  44  N.  E.  24. 

"  Cleveland  v.  Spilman,  25  Ind.  95 ; 
Black  V.  Richards,  95  Ind.  184;  Po- 
cock  V.  Redinger,  108  Ind.  573,  9  N. 
E.  473,  58  Am.  Rep.  7ln;  Dunning  v. 
Vandusen,  47  Ind.  423.  In  an  action 
to  recover  real  estate  claimed  under  a 
devise  by  the  description,  "Part  of  the 
donation  lot  number  158,  in  township 
number  3  north,  of  range  number  8 
west,  containing  two  hundred  acres," 
parol  evidence  was  admissible  to  iden- 
tify the  land  sued  for  with  the  land 
devised,  and  to  show  that  the  testator 
died  seized  of  it  and  of  no  other  part 


of  donation  lot  number  158.  Such  de- 
vise was  not  void  for  uncertainty  of 
description  of  the  land.  Cruse  v. 
Cunningham,  79  Ind.  402.  K  will,  at- 
tempting to  devise  real  estate,  de- 
scribed it  as  follows :  "The  west  half 
of  the  southwest  fr.  section  (19)  nine- 
teen, township  (22),  range  (1  W.), 
contain  (72)  seventy-two  and  (40) 
hundredth's  acres,"  but  it  did  not 
name  the  state  or  county,  or  state 
whether  the  township  was  "north"  or 
"south."  Held,  that,  under  the  mod- 
ern rule  that  the  thing  devised  may 
be  identified  by  parol  evidence,  the 
will  was  not  void  for  mere  uncertain- 
ty of  description.  Black  v.  Richards, 
95  Ind.  184;  Rook  v.  Wilson,  142  Ind. 
24,  41  N.  E.  311,  51  Am.  St.  163. 

"  Pate  V.  French,  122  Ind.  10,  23  N. 
E.  673;  Sturgis  v.  Work,  122  Ind.  134, 
22  N.  E.  9%,  17  Am.  St.  349. 

"  Fesler  v.  Simpson,  58  Ind.  83. 


I  ,QQ  CONSTRUCTION    OF    WILLS.  893 

death  of  the  testator."  And  where  the  Supreme  Court  has 
once  given  a  construction  to  a  will  such  construction  becomes 
the  law  of  the  case  and  governs  in  all  future  proceedmgs 

;^  person  cannot  be  allowed  at  the  same  time  to  benefit  by  and 
repudiate  a  will.  If  he  chooses  to  take  the  benefit  which  it  con- 
fers he  must  likewise  accept  the  obligation  which  it  imposes;  no 
person  can  accept  and  reject  the  same  instrument." 

Courts  do  not  assume  to  make  a  will  for  a  testator.  They  on  y 
seek  for  his  meaning  and  intention  in  the  language  of  the  will. 
And  the  intention  to  be  carried  into  effect  by  a  judical  mteiTreta- 
tion  or  construction  of  a  will  is  not  what  existed  m  the  nimd  of 
a  testator  when  it  was  executed,  but  that  which  ,s  embodied  m 
the  laneuaee  of  the  will  itself.""  .     ,     .• 

WiuLpLk  from  the  death  of  the  testator,  and  that  ,s  he  time 
at  which  they  become  effective,  and  all  expressions  used  in  the 
will  in  reference  to  the  disposition^of  the  property  must  be  con- 
strued  with  reference  to  that  fact."' 

S  509.    Rule  as  to  personal  property.-The  books  make  dis- 
tiiutions  between  the  rules  of  construction  of  wil  s  relating  to 
personal  property,  and  those  relating  alone  to  real  estate.     Bu 
ft  has  been  doubted  whether  such  rules  of  distinction  longer    x. 

in  this  state,  where  the  paramount  *i-*;"  <='"f  ^^'I'T    a 
as  nearly  as  possible  at  the  intention  of  the  '^^'aton       It  -^ 
said  in  one  case  that:     "It  is  certain,  we  think,  *-*«;- °^ 
thus  given  for  the  supposed  distinction  has  long  «^^^d  'o  e.xis  , 
if  it  ^ver  existed  in  this  state.    Here  the  testator  s  will  of  per- 
sonal estate  must  be  executed  with  precisely  the  same  solemnity 

.Ken,  V.  St;„so„,  8  BlacUf.  (I„d.)     ^^^^^ ^-^t:%^1s 

'''.Brown  v.  Cri.chell,  UO  Ind.  31,  7    L.  R.  A-  ^f  ■  D-f';;^  ^ ^"i'^ 

V   -F  QQQ   11  K   E  486-  Watt  v.  Pitt-     119  Ind.  254,  20  N.  E.  779,  ^  i^-  i^-^^ 

■f,-    TH     168    25    N     E     191-     847n;  Engelthaler  V.  Engelthaler,  196 

sZH'::s"^e„'s%td^4.f;p.c; ..  m  «3^^/, -•---;•■ 

" T '  \T^^  '"'■  '"'• ""'  ""^^^  ^-  «="-"• '« '"'■ ''' 

man  Estoppel,  S  467.  ^ 

-Lee  V.  Lee,  45  Ind.  App.  645,  91     28  N.  E.  olO. 


894  INDIANA    PROBATE    LAW.  §  509 

and  formality  as  the  will  devising  real  estate;  and  tliere  is  no 
perceptible  or  practical  difference  in  the  operation  of  a  will  upon 
personal  estate  and  upon  real  estate.""^ 

While  the  word  devise  is  the  appropriate  term  in  a  will  to  pass 
real  estate,  and  bequeath  the  term  applicable  to  gifts  of  personal 
property,  yet  a  strict  adherence  to  technical  words  is  not  neces- 
sary to  give  effect  to  any  species  of  disposition  ;  and  where  the 
testator's  intention  is  plain  it  will  be  carried  out  regardless  of 
the  legal  operation  of  technical  vvords."^ 

The  word  "estate"  does  not  necessarily  include  both  species 
of  property,  but  may  be  construed  to  mean  either  personal  or  real 
estate. "° 

It  is  the  rule  as  to  wills  disposing  of  personal  estate,  that  all 
lapsed  and  void  legacies  will  pass  under  the  residuary  clause  of 
such  wills.""  In  this  respect  the  old  rule  of  distinction  between 
lapsed  or  void  bequests  of  personal  property  and  lapsed  or  void 
devises  of  real  estate  has  been  abolished,  and  both  species  of 
property  will  now  pass  alike  into  the  residuum,  and  to  the  resi- 
duary legatee,  or  his  descendants,  to  the  exclusion  of  the  heirs. "^ 

In  bequests  of  personal  property  it  is  not  necessary  to  use 
words  of  inheritance  to  give  an  absolute  title. "^    And  both  real 

•''  Holbrook  v.  iMcCleary,  79  Ind.  167.  "'  Beach,  Wills,  4;  Lasher  v.  Lasher, 

In  this  case  the  court  says:      "It  is  13    Barb.    (N.    Y.)    106;    Borgner   v. 

said,  however,  that  there  exists  an  ini-  Brown,  133  Ind.  391,  33  X.  E.  92. 

portant  distinction  between  a  void  or  '"Crew  v.  Dixon,  129  Ind.  85,  27  N. 

lapsed  bequest  of  personal  estate  and  E.  728;  Goudie  v.  Johnston,  109  Ind. 

a  void  or  lapsed  devise  of  real  estate,  427,  10  N.  E.  296;  Giles  v.  Little,  104 

which   obtains  both   in   England   and  U.    S.  291,  26  L.   ed.   745;   Green   v. 

America,  in  this,  that  the  former  falls  Hewitt,  97  111.  113,  37  -Am.  Rep.  102. 

into  the  residuum  and  the  latter  goes  ""Gray  v.  Bailey,  42  Ind.  349;  Hol- 

to  the  heir.    2  Redf.  on  Wills,  p.  117.  brook    v.     McCleary,    79    Ind.     167; 

The    reason    generally    assigned  for  Greene  v.  Dennis,  6  Conn.  292 ;  James 

such  distinction  has  been  the  different  v.  James,  4  Paige  (N.  Y.)  115. 

operation  of  a  will  upon  personal  and  "'  Holbrook    v.    McCleary,    79    Ind. 

real  estate.     It  is  said,  that,  as  to  per-  167 ;     Prescott    v.    Prescott,    7    Met. 

sonal   estate,   the  w-ill   would   operate  (Mass.)  141 ;  Thayer  v.  Wellington,  9 

upon  all  the  personal  estate  held  by  Allen  (Mass.)  283,  85  Am.  Dec.  753n. 

the  testator  at  the  time  of  his  death;  "^  Chism  v.  Respass,   1  T.   B.   Mon. 

while,  as  to  his  real  estate,  the  testa-  (Ky.)    25;    Boyd  v.    Strahan,   36  111. 

tor  could  only  devise  such  as  he  owned  355 ;  Mulvane  v.  Rude,  146  Ind.  476,  45 

at  the  time  of  making  his  w-ill."  N.  E.  659. 


§  5IO  CONSTRUCTION    OF    WILLS.  895 

and  personal  property  may  be  disposed  of  in  the  same  connection 
and  in  the  same  words. ^'^ 

§  510.  As  to  precatory  words. — Precatory  words  are  such 
words  of  desire,  request,  recommendation,  entreaty,  or  expecta- 
tion which,  when  addressed  by  a  testator  to  his  legatee  or  devisee 
in  connection  with  a  testamentary  gift,  will  raise  a  trust  in  the 
donee  in  favor  of  an  ulterior  beneficiary.  The  language  em- 
ployed must  clearly  indicate  on  the  part  of  the  testator  a  purpose 
beyond  the  direct  gift.  That  is,  whether  the  words  used  are 
meant  to  govern  the  conduct  of  the  party  to  whom  they  are  ad- 
dressed, or  whether  they  are  a  mere  indication  of  that  which  the 
testator  thinks  would  be  a  reasonable  exercise  of  the  discretion 
of  the  party,  leaving  him  to  exercise  such  discretion.^" 

In  an  English  case  the  chancellor  says :  'T  conceive  the  rule 
of  construction  to  be  that  words  accompanying  a  gift  or  bequest 
expressive  of  confidence  or  belief  or  desire  or  hope  that  a  par- 
ticular application  will  be  made  of  such  bequest  will  be  deemed 
to  import  a  trust  upon  these  conditions ;  ( i )  that  they  are  so  used 
as  to  exclude  all  option  or  discretion  in  the  party  who  is  to  act 
as  to  his  acting  according  to  them  or  not;  (2)  the  subject  must 
be  certain;  (3)  the  objects  expressed  must  not  be  too  vague  or 
indefinite  to  be  enforced. "^^ 

In  an  American  case  it  is  said  to  be  the  "settled  doctrine  of 
courts  of  chancer\'  that  a  devise  or  bequest  to  one  person,  accom- 
panied by  words  expressing  a  wish,  entreaty,  or  recommendation 
that  he  will  apply  it  to  the  benefit  of  others,  may  be  held  to  create 
a  trust,  if  the  subject  and  the  objects  are  sufficiently  certain. 
Some  of  the  earlier  English  decisions  had  a  tendency  to  give  to 
this  doctrine  the  weight  of  an  arbitrarv'  rule  of  construction. 
But  by  the  later  cases  in  this,  as  in  all  other  questions  of  the  in- 
terpretation of  wills,  the  intention  of  the  testator,  as  gathered 
from  the  whole  will,  controls  the  court.  In  order  to  create  a 
trust,  it  must  appear  that  the  words  were  intended  by  the  testator 

**  Johnson  v.  Johnson,  1  Munf.  '*  Woerner  Am.  Law.  Admin.,  §  415. 
(Va.)  549;  Mulvane  v.  Rude,  146  Ind.  ■"  Briggs  v.  Penny,  3  Macn.  &  G., 
476,  45  N.  E.  659.  546. 


896 


INDIANA    PROBATE    LAW. 


§  510 


to  be  imperative;  and  when  property  is  given  absolutely  and 
without  restriction  a  trust  is  not  lightly  to  be  imposed,  uix)n 
mere  words  of  recommendation  and  confidence."'" 

While  mere  precatory  words  may  be  sufficient  to  create  a  trust 
when  used  by  the  testator  in  such  connection  that  an  intention 
to  create  a  trust  can  be  clearly  inferred  from  the  entire  will,  yet 
the  current  of  decisions  of  late  years  acts  against  this  doctrine 
of  converting  the  devisee  or  legatee  into  a  trustee,  and  the  courts 
will  not  imply  a  trust  unless  it  appears  from  the  will  that  such 
was  the  intention  of  the  testator.'^ 


"Hess  V.  Singler,  114  Mass.  56; 
Colton  V.  Colton,  127  U.  S.  300,  32  .L. 
ed.  138,  8  Sup.  Ct.  1164.  In  this  case 
the  court  says :  "As  to  the  doctrine  of 
precatory  trusts,  it  is  quite  unneces- 
sary to  trace  its  origin,  or  review  the 
numerous  judicial  decisions  in  Eng- 
land and  in  this  country  wiiich  record 
its  various  applications.  If  there  be 
a  trust  sufficiently  expressed  and  ca- 
pable of  enforcement  by  a  court  of 
equity,  it  does  not  disparage,  much 
less  defeat  it,  to  call  it  'precatory.' 
The  question  of  its  existence,  after 
all,  depends  upon  the  intention  of  the 
testator  as  expressed  by  the  words  he 
has  used,  according  to  their  natural 
meaning,  modified  only  by  the  context 
and  the  situation  and  circumstances 
of  the  testator  when  he  used  them. 
On  the  one  hand,  the  words  may  be 
merely  those  of  suggestion,  counsel, 
or  advice,  intended  only  to  influence, 
and  not  to  take  away  the  discretion  of 
the  legatee  growing  out  of  his  right 
to  use  and  dispose  of  the  property 
given  as  his  own.  On  the  other  hand, 
the  language  employed  may  be  imper- 
ative in  fact,  though  not  in  form,  con- 
veying the  intention  of  the  testator  in 
terms  equivalent  to  a  command,  and 
leaving  to  the  legatee  no  discretion  to 
defeat  his  wishes,  although  there  may 
be  a  discretion  to  accomplish  them  by 


a  choice  of  methods,  or  even  to  define 
and  limit  the  extent  of  the  interest 
conferred  upon  his  beneficiary." 

'' Elliott  v.  Elliott,  117  Ind.  380,  20 
X.  E.  264,  10  Am.  St.  54;  Anderson  v. 
Crist,  113  Ind.  65,  15  N.  E.  9;  Van 
Gorder  v.  Smith,  99  Ind.  404;  Mitchell 
V.  Mitchell,  140  Ind.  113,  42  N.  E.  4o5. 
In  this  last  case  the  court  says:  "The 
conflict  of  opinion  as  to  the  effect  of 
words  of  this  character  is  almost  be- 
wildering. Confusion  has  arisen  from 
the  idea  that  'the  wish  of  a  testator, 
like  the  request  of  a  sovereign,  is 
equivalent  to  a  command,'  regardless 
of  other  rules  of  construction  and  of 
other  expressions  of  the  testator  in 
positive  conflict  with  the  notion  of  a 
command.  In  the  recent  case  of  Orth 
v.  Orth,  145  Ind.  184,  42  N.  E.  277,  44 
N.  E.  17,  57  Am.  St.  185,  32  L.  R.  A. 
298,  we  cited  many  cases  where  ex- 
pressions of  hope,  confidence,  entreaty, 
wish  and  request  were  held  not  to 
create  a  trust.  In  addition  to  the  au- 
thorities there  cited,  we  quote  from 
Beach  on  Wills,  p.  404,  the  doctrine  of 
precatory  trusts  as  we  understand  and 
approve  it.  'Precatory  trusts  have  not 
been  invariably  regarded  with  favor 
in  England,  and  in  recent  cases  a  dis- 
position has  been  evinced  to  qualify 
the  rule  or  apply  it  with  caution ;  also 
among  the  American  states,  the  courts 


511 


CONSTRUCTION    OF    WILLS. 


897 


§  511.  Declarations  of  the  testator. — A  testator's  declara- 
tions are  not  admissible  to  affect  the  construction  of  a  will.  They 
are  admissible  on  questions  of  fraud  and  undue  influence.  They 
are  admissible  to  show  the  state  of  the  testator's  mind. 

In  one  case  it  is  said,  "Verbal  declarations  of  a  testator  are 
not  competent  evidence  to  prove  a  mistake  in  a  will,  but  evidence 
of  facts  and  circumstances  is.  It  is  proper  to  show  the  situation 
and  condition  of  the  testator's  property,  but  it  is  not  proper  to 
prove  what  he  said,  for  when  the  instrument  is  written  that  is 
deemed  the  expression  of  the  testator's  intention,  and  there  the 
exploration  for  his  intention  must  be  made."^'* 

Declarations  made  in  connection  with  the  execution  of  the  will 
are  not  admissible  for  the  purpose  of  showing  undue  influence 
in  its  execution.'^  But  declarations  of  the  testator  made  before 
the  execution  of  the  will  are  admissible  to  show  his  intentions  as 


of  South  Carolina,  New  Jersey,  New 
York,  and  Connecticut,  appear  dis- 
posed to  construe  the  doctrine  with 
strictness;  while  in  Pennsylvania  the 
English  rule  has  been  declared  to 
form  no  part  of  the  common  law  of 
that  state,  precatory  words  being  con- 
strued by  its  courts  to  amount  to  a 
declaration  of  a  trust,  only  when  it  ap- 
pears from  other  parts  of  the  will  that 
the  testator  intended  not  to  commit 
the  ultimate  disposal  of  the  estate  to 
the  kindness,  justice,  or  discretion  of 
the  devisee  or  legatee.  And  in  other 
states  the  judges  show  a  decided  lean- 
ing against  the  doctrine.  Although 
the  modern  tendency  is  very  decidedly 
toward  a  restriction  of  this  doctrine, 
when  cases  arise  in  which  both  the 
subject  and  the  object  of  the  trust  are 
clearly  defined  in  the  precatory  words 
or  clauses,  the  court  will  consider  it 
evidence  of  an  intention  to  create  a 
trust.'  Many  authorities  are  there 
cited  in  support  of  the  text."  It  is 
an  error  to  suppose  that  the  word  "re- 
quest" necessarily  imports  an   option 


to  refuse,  and  excludes  the  idea  of 
obedience  as  corresponding  duty.  If 
a  testator  requests  his  executor  to  pay 
a  given  sum  to  a  particular  person, 
the  legacy  would  be  complete  and  re- 
coverable, according  to  its  context 
and  manifest  use,  an  expression  of 
desire  or  wish  will  often  be  equiva- 
lent to  a  positive  direction,  where  that 
is  the  evident  purpose  and  meaning  of 
the  testator;  as  where  a  testator  de- 
sired that  all  of  his  just  debts,  and 
those  of  a  firm  for  which  he  was  not 
liable,  should  be  paid  as  soon  as  con- 
venient after  his  decease,  it  was  con- 
strued to  operate  as  a  legacy  in  favor 
of  the  creditors  of  the  latter.  Burt  v. 
Herron,  66  Pa.  St.  400. 

"  Pocock  V.  Redinger,  108  Ind.  573, 
9  N.  E.  473,  58  Am.  Rep.  7  In. 

"  Hayes  v.  West,  Z1  Ind.  21 ;  Todd 
V.  Fenton,  66  Ind.  25;  Van  Valken- 
berg  V.  Van  Valkenberg,  90  Ind.  433 ; 
Conway  v.  Vizzard,  122  Ind.  266,  23  N. 
E.  771 ;  Goodbar  v.  Lidikey,  136  Ind. 
1,  35  N.  E.  691,  43  Am.  St.  296. 


57 — Pro.  Law. 


898  INDIANA    PROBATE    LAW.  §  51- 

to  the  disposition  of  his  property,  by  way  of  rebuttal  of  proof 
of  undue  influence. '" 

§  512.  Terms  descriptive  of  classes. — The  word  "chil- 
dren," when  used  in  a  will,  does  not  denote  grandchildren;  tlie 
word  must  be  understood  in  its  primary  or  simple  sense  where 
there  are  any  of  such  class  in  existence  at  the  date  of  the  will  or 
the  taking  effect  of  the  bequest  or  legacy. 

An  eminent  text-writer  says:  "The  word  'children,'  as  well 
as  all  other  similar  descriptive  terms  of  classes  or  relations,  it 
will  be  borne  in  mind,  must  always  be  understood  in  wills,  in  its 
primary  and  simple  signification,  where  that  can  be  done;  in 
short,  where  there  are  any  persons  in  existence  at  the  date  of 
the  will,  or  before  the  devise  or  legacy  takes  effect,  answering  the 
meaning  of  the  term.  And  where  the  term  'children'  has  re- 
ceived a  larger  and  more  extended  construction,  as  synonymous 
with  issue,  it  has  generally  been  based  upon  something  in  tlie 
will  unless  it  resulted,  as  already  intimated,  from  the  fact  that 
there  were  no  children  in  existence."" 

"Bundy  v.  McKnight.  48  Ind.  502;  the  will,  are  admitted  by  way  of  re- 
Lamb  V.  Lamb,  105  Ind.  456,  5  N.  E.  buttal,  to  show  his  intentions  as  to  the 
171 ;  Goodbar  v.  Lidikey,  136  Ind.  1,  disposition  of  his  property.  Where 
35  N.  E.  691.  43  Am.  St.  296;  Roberts  the  will  is  made  in  conformity  with 
V.  Trawick,  17  Ala.  55.  52  Am.  Dec.  the  repeated  declarations  of  the  testa- 
164n ;  Gardner  v.  Frieze,  16  R.  I.  640,  tor,  it  is  more  likely  to  have  been  ex- 
19  Atl.  113;  McCray  v.  Lipp,  35  Ind.  ecuted  without  undue  influence  than 
116.  In  Goodbar  v.  Lidikey,  136  Ind.  if  found  contrary  to  such  declara- 
1,  35  N.  E.  691,  43  Am.  St.  296,  the  tions." 

court  sums  up  as  follows  :     "It  is  well        "  Redfield   on    Wills,    p.    15;    Cum- 

settled  that  the  mere  declarations  of  a  mings   v.    Plummer.  94   Ind.   403,   48 

testator,  not  made  in  connection  with  Am.    Rep.    167;    Pugh    v.    Pugh,    105 

the  execution  of  the  will,  are  not  ad-  Ind.  552,  5  N.  E.  673.    In  Jarman  on 

missible  for  the  purpose  of  showing  Wills,  Vol.  II,  p.  690,  it  is  said :   "The 

that  the  will  was  procured  by  undue  legal   construction  of  the  word  chil- 

influence.  dren  accords  with  its  popular  signifi- 

But    it    is    quite    otherwise    when  cation;  namely,  as  designating  the  im- 

a    will    is    to    be    defended    against  mediate  offspring;  for,  in  all  the  cases 

an  assault  by  one  who  claims  that  it  in  which  it  has  been   extended  to  a 

was  executed  through  undue  influence,  wider  range  of  objects,  it  was  used 

In  such  case,  the  declarations  of  the  synonymously  with  a  word  of  larger 

testator,  made  before  the  execution  of  import,  as  issue.     It  has  been  asserted. 


§512  CONSTRUCTION    OF    WILLS.  899 

But  this  larger  and  more  extended  meaning  of  the  term,  when 
used  as  descriptive  of  persons  to  take  under  a  will,  is  only  al- 
lowed, first,  from  necessity,  where  the  will  would  otherwise  be 
inoperative;  and  second,  where  the  testator  has  shown  by  other 
words  that  he  did  not  use  the  word  in  its  ordinary  and  proper 
meaning,  but  in  its  more  extended  sense. ''^ 

Where  a  bequest  is  made  to  a  class,  the  rule  is  that  the  bequest 
will  include  all  in  existence  at  the  death  of  the  testator,  unless  it 
appears  from  the  will  that  it  was  intended  to  have  a  limited  ap- 
plication. It  is  also  a  general  rule  that  all  who  are  embraced  in 
the  class  at  the  time  the  bequest  takes  effect  will  be  allowed  to 
share  in  it,  and  it  is  immaterial,  whether  all  are  in  existence  at 
the  death  of  the  testator  or  are  born  into  the  class  after  that  time, 
provided  they  are  born  before  the  time  of  distribution.^^ 

A  testator  devised  his  estate  to  his  son,  and  provided  that  if  he 
should  die  without  a  lawful  heir  or  heirs,  the  estate  should  go  to 
the  children  of  the  testator's  daughter.  It  was  held  that  the 
word,  "heir,"  or  "heirs,"  was  used  in  the  limited  sense  of  the 
child  or  heir  of  his  body  at  the  time  of  the  death  of  the  son.®" 

Unless  a  different   intention   is  manifest   from  the   will   the 

however,  that  a  gift  to  children  ex-  ""  Goodwin  v.  Goodwin,  48  Ind.  584; 
tends  to  grandchildren,  where  there  is  Eisman  v.  Poindexter,  52  Ind.  401. 
no  child."  In  Churchill  v.  Churchill,  Gifts  to  children  apply  only  to  those 
2  Met.  (Ky.)  466,  the  court  says:  who  correspond  with  the  description 
"The  technical  legal  import  of  the  at  the  period  of  distribution.  There- 
word  children  accords  with  its  ordi-  fore,  immediate  gifts  extend  only  to 
nary  and  popular  signification.  It  those  who  claim  to  be  beneficiaries  at 
does  not  denote  grandchildren;  and  the  testator's  death.  But  deferred 
though  sometimes  used  with  that  pur-  gifts  will  be  applied  in  favor  of  all,  or 
pose  and  effect,  there  is  no  warrant  their  representatives,  who  correspond 
for  thus  enlarging  its  meaning  in  con-  with  the  description  any  time  after  the 
struing  a  will,  unless  indispensably  testator's  death,  and  before  the  period 
necessary  to  effectuate  the  obvious  in-  of  distribution.  O'Hara,  Const.  Wills, 
tent  of  the  testator."  289. 

"Churchill    v.     Churchill,    2    Met.        *" Jones  v.  Miller,  13  Ind.  337;  Smith 

(Ky.)  466;  Collins  v.  Hoxie,  9  Paige  v.    Hunter,    23    Ind.    580;     Pate    v. 

(N.  Y.)  81 ;  Gable's  Appeal,  40  Pa.  St.  French,  122  Ind.  10,  23  N.  E.  673;  Es- 

231;  Osgood  v.  Lovering,  33  Me.  464;  sick  v.  Caple,  131  Ind.  207,  30  N.  E. 

Thomson  v.  Ludington,  104  Mass.  193 ;  900. 
Low  V.  Harmony,  72  N.  Y.  408;  Feit 
V.  Vanatta,  21  N.  J.  Eq.  84. 


900  INDIANA    PROBATE    LAW.  §513 

word  ''cliildren"  properly  includes  only  the  immediate  descend- 
ants of  the  person  named  and  does  not,  as  a  rule,  apply  to  grand- 
children or  issue  generally.*^ 

A  gift  to  a  class  which  is  postponed  to  the  expiration  of  a 
period  intervening  after  the  testator's  death  must  be  shared  by 
all  who  constitute  the  class  at  the  expiration  of  the  intervening 
estate,  including  children  born  after  the  testator's  death. '''- 

§  513.  Disinheritance  of  heirs. — As  the  right  to  dispose  of 
property  by  will  is  an  inherent  one,  any  person  who  is  competent 
to  make  a  will  can,  as  a  rule,  make  such  disposition  of  his  prop- 
erty as  he  pleases,  and  may  even  disinherit  his  children,  and  his 
motives  in  so  doing  cannot  be  questioned. ^^ 

But  in  giving  a  constmction  to  a  will  it  should  always  be  kept 
in  mind  that  equality  in  the  disposition  of  estates  is  favored  in 
law,  and  that  heirs  at  law  will  not  be  disinherited,  only  by  ex- 
press words  or  necessary  implication  and  not  solely  by  con- 
jecture.*** 

The  law  is  clear  that  the  course  of  the  descent  of  an  estate  to 
the  heirs  at  law  can  only  be  interrupted  by  ^  devise  to  some  other 
person,  whatever  may  have  been  the  intention  of  the  testator,  and 
such  devisee  must  be  named. ^^ 

Where  one  construction  of  an  ambiguous  will  leads  to  a  dis- 
inheritance of  the  heir,  while  another  construction  is  in  its  results 
favorable  to  him,  the  latter  construction  must  be  adopted.  ®® 

*^  Pugh  V.  Pugh,  105  Ind.  552,  5  N.  onlj'  be  disinherited  by  express  devise 

E.    673;    Cuinmings    v.    Plummer,    94  or  necessary  implication,  and  that  im- 

Ind.  403,  48  Am.  Rep.  167.  plication  has  been  defined  to  be  such 

*^  Walker  v.   Johnston,   70   N.   Car.  a  strong  probability,  that  an  intention 

576;     Webster   v.    Welton,   53    Conn,  to  the  contrary  cannot  be  supposed." 

183,  1  Atl.  633;  Demill  v.  Reid,  71  Md.  1  Jar.  Wills,  465;  Rupp  v.  Eberly,  79 

175,  17  Atl.  1014.  Pa.  St.  141. 

^  Addington  v.  Wilson,  5  Ind.   137,        ^  Doe  v.  Lanius,  3  Ind.  441,  56  Am. 

61  Am.  Dec.  81;  Rabb  v.  Graham,  43  Dec.  518n;  IMcIntire  v.  Cross,  3  Ind. 

Ind.  1.  444. 

^Crew  V.  Dixon,  129  Ind.  85,  27  N.        ^Jenkins  v.  Compton,  123  Ind.  117, 

E.  728.     The  general   rule  upon  this  23   N.  E.   1091 ;   Wood  v.   Robertson, 

subject  is  thus  stated:     "It  is  a  well-  113  Ind.  323,  15  N.  E.  457;  Crew  v. 

known  maxim,  that  an  heir  at  law  can  Dixon,  129  Ind.  85,  27  N.  E.  728. 


§514  CONSTRUCTION    OF    WILLS.  9OI 

And  while  it  is  true  that  a  person  may  disinherit  his  kindred 
and  give  his  property  to  whom  he  sees  fit,  yet  such  a  disposition 
of  it  being  unusual,  the  jury  may  rightfully  examine  into  the 
reasonableness  of  such  a  disposition  as  affecting  the  unsoundness 
of  mind  of  the  testator,  or  the  exercise  of  an  undue  influence 
over  it,  and  with  this  in  view  may  look  into  the  situation,  con- 
nections and  property  of  a  testator.^^  The  fact  that  a  mother 
disinherits  her  only  child,  and  that  he  is  needy,  with  a  young 
family  on  his  hands,  are  circumstances  which  a  juiy  may  well 
consider  in  determining  the  question  of  her  sanity.^® 

Our  court  says:  "Among  the  rules  of  construction  is  that 
which  springs  from  our  human  nature,  when  engaged  in  the 
serious  and  solemn  business  of  making  a  final  disposition  of  prop- 
erty, and  when  natural  affection  for  wife  and  children  has  the 
most  impartial  and  sincerest  sway.  In  such  moments  it  is  pre- 
sumed that  the  testator  will  have  a  just  and  tender  regard  for 
those  dependent  ones  who  are  the  natural  recipients  of  his 
bounty,  and  whose  future  comfort  and  happiness  have  the 
promptings  of  his  affection.  Hence  it  is  that  no  construction  of 
a  will  is  to  be  accepted  that  disinherits  a  child  or  direct  descendant 
in  favor  of  collateral  kindred,  unless  the  language  of  the  will  is 
such  as  to  clearly  indicate  such  intention.  "^^'^ 

§  514.  Passes  the  entire  estate,  when. — The  statute  itself 
provides  that :  "Every  devise  in  terms  denoting  the  testator's 
intention  to  devise  his  entire  interest  in  all  his  real  or  personal 

*' Bundy  v.  McKjiight,  48  Ind.  502;  he  may  bequeath  more  of  his  property 

Lamb  v.  Lamb,  105  Ind.  456,  5  N.  E.  to  some  than  to  others  of  his  children, 

171 ;  Gurley  v.  Park,  135  Ind.  440,  35  and  the  motive  for  so  doing  cannot  be 

N.  E.  279;   Clark  v.  Fisher,  1  Paige  questioned,  and  the  hardship  of  the 

Ch.  (N.  Y.)  171,  19  Am.  Dec.  402.  In  case  can  have  no  other  weight  further 

Lamb  v.  Lamb,  105  Ind.  456,  5  N.  E.  than    a    circumstance,    tending    with 

171,  the  court  approves  the  following  other  testimony  to  show  the  insanity 

instruction :    "A  person  competent  to  of  the  testator." 

make  a  will  may  disinherit  all  of  his  '*  Gurley  v.   Park,   135   Ind.  440,  35 

children,  and  bestow  all  of  his  prop-  N.  E.  279. 

erty  upon   strangers,  or  he  may  give  ^  Aspy  v.  Lewis,  152  Ind.  493,  52  N. 

his   property  to  one   or  more  of  his  E.  756. 
children  and  disinherit  the  others,  or 


902  INDIANA    PROBATE    LAW.  §  514 

property  shall  be  construed  to  pass  all  the  estate  in  such  prop- 
erty, including  estates  for  the  life  of  another,  which  he  was  en- 
titled to  devise  at  his  death.  A  devise  or  bequest  to  a  wife,  with 
a  condition  in  restraint  of  marriage,  shall  stand,  but  the  condition 
shall  be  void.""" 

Whatever  interest  may  be  given  by  the  will  a  devisee  or  legatee 
will  take  such  title  or  interest  in  the  property  devised  or  be- 
queathed as  the  testator  had  therein  at  the  time  of  his  death.  He 
cannot  assert  any  claim  to  an  interest  formerly  owned  by  the 
testator  at  the  date  of  the  will.  And  until  the  will  has  been  duly 
probated  he  can  assert  no  interest  whatever  to  the  testator's 
estate."' 

A  devise  of  "all  my  worldly  estate"  will  pass  title  to  such  real 
estate  as  the  testator  owned  at  the  time  of  his  death,  without  any 
more  particular  description  of  the  same."*  And  if  afterward  the 
testator  attempts  a  particular  description  of  the  property,  a  mis- 
take therein  is  immaterial,"^  even  if  he  describes  land  he  did  not 
own."* 

A  devise  or  bequest  dependent  on  some  contingency  passes 
nothing  until  the  happening  of  the  contingency.  The  rule  is 
thus  stated :  "Whenever  it  appears  that  the  happening  of  an 
event,  or  the  performance  of  an  act,  was  intended  to  operate  as 
a  condition  to  precede  the  vesting  of  a  legacy  or  devise,  it  is 

""Burns'  R.   S.   1908,  §  3123.     Dun-  American,   seem   generally  agreed   in 

ning  V.  Vanduscn,  47  Ind.  423,  17  Am.  the  position  that  an  express  estate  for 

Rep.  709.    In  4  Kent  Com.,  319,  it  says :  life,  given  by  will,  negatives  the  inten- 

"A  devise  of  an  estate  generally,  or  in-  tion  to  give  the  absolute  property  and 

definitely,  with  a  power  of  disposition  converts  words  conferring  a  right  of 

over  it,  carries  a  fee.     But  where  the  disposition  into  words  of  mere  pow- 

estate  is  given  for  life  only,  the  de-  er."     Denson  v.  Mitchell,  26  Ala.  360 ; 

visee    takes   only   an    estate    for   life,  Skinner  v.  Spann,  —  Ind.  — ,  95  X.  E. 

though  a  power  of  disposition,  or  to  243. 

appoint  the  fee  by  deed  or  will,  be  an-  "  Bennett  v.  Gaddis,  79  Ind.  347. 

nexed;   unless  there  should  be  some  ""Pettis  v.  Johnson,  56  Ind.  139. 

manifest  general  intent  of  the  testa-  "  Priest  v.  Lackey,  140  Ind.  399,  39 

tor,  which  would  be  defeated  by  ad-  N.  E.  54. 

hering  to  this  particular  intent."  **  Cleveland  v.  Spilman,  25  Ind.  95. 

"The  authorities,  both  English  and 


514 


COXSTRUCTIOX    OF    WILLS. 


903 


essential  that  the  event  happens  or  the  act  is  done,  since  no  in- 
terest will  previously  vest  in  the  legatee  or  devisee."^^ 

Lands  may  be  devised  to  one  person  in  fee  and  upon  the  hap- 
pening of  a  certain  contingency  to  vest  in  other  persons  in  fee 
simple.**"  But  if  none  of  the  persons  in  whom  the  fee  is  finally 
vested  are  in  existence  at  the  happening  of  the  contingency  the 
estate  will  vest  in  the  heir  of  the  testator  by  descent.®' 

Where  lands  devised  have  not  been  fully  described  in  the  will, 
the  particular  lands  intended  may  be  identified  by  parol  or  other 
extrinsic  evidence.®^ 

The  law  favors  vested  remainders,  and  in  cases  of  doubtful 
construction  will  hold  a  remainder  vested  rather  than  contingent ; 
but  the  intention  of  the  testator  must  govern  where  it  can  be 
arrived  at,  let  the  result  be  what  it  may.®® 


'*  Roper  on  Legacies,  750;  2  Powell 
on  Devises,  251 ;  Gibson  v.  Seymour, 
102  Ind.  485,  2  N.  E.  305,  52  Am.  Rep. 
688.  In  this  case  it  is  said:  "There 
is  no  absolute  devise  to  Mrs.  Gibson, 
and  unless  the  court  inserts  such  a  de- 
vise in  the  will,  she  cannot  take  the 
property  of  the  testatrix.  Not  only  is 
there  no  absolute  devise,  but  there  is 
a  conditional  one,  and  the  contingency 
is  the  event  of  the  survival  of  the  hus- 
band of  the  testatrix.  It  is  a  familiar 
rule  that  the  express  mention  of  one 
thing  implies  the  exclusion  of  all 
others,  and  under  this  rule  it  must  be 
held  that  expressly  making  the  devise 
depend  upon  the  happening  of  a  given 
event  excludes  the  inference  that  the 
devise  was  intended  to  be  an  absolute 
one." 

••Jones  v.  Miller,  13  Ind.  Zi7 ;  Smith 
V.  Hunter,  23  Ind.  580. 

"  Waters  v.  Bishop,  122  Ind.  516,  24 
X.  E.  161.  Where  a  will  limits  the 
estate  of  the  first  taker  to  life,  the  de- 
visee cannot  take  a  fee.  although  he 
may  be  invested  with  a  power  to  ap- 
point those  who  shall  take  that  estate. 


Crew  V.  Dixon,  129  Ind.  85,  27  N.  E. 
728.  The  children  of  a  testator  took 
a  vested  interest  in  the  residue  of  his 
estate  at  the  time  of  his  death,  the  en- 
joyment of  the  same  being  postponed 
during  the  life  of  his  wife,  where  the 
testator,  after  making  specific  devises 
to  his  children,  bequeathed  the  rest  of 
his  property  to  his  wife  for  life,  and 
provided  that  after  her  death  all  his 
estate  should  be  divided  in  equal 
shares  among  all  his  children,  and  that 
should  any  of  his  children  be  dead, 
and  have  left  children,  they  should  be 
entitled  to  the  distributive  share  of 
their  parents.  Heilman  v.  Heilman, 
129  Ind.  59,  28  X.  E.  310. 

"  Cruse  v.  Cunningham,  79  Ind.  402 ; 
Black  V.  Richards,  95  Ind.  184;  Lind- 
sey  V.  Lindsey,  45  Ind.  552;  Rook  v. 
Wilson,  142  Ind.  24.  41  X.  E.  311,  51 
Am.  St.  163. 

»•  Stephens  v.  Evans,  30  Ind.  39; 
Bruce  v.  Bissell,  119  Ind.  525,  22  X.  E. 
4,  12  Am.  St.  436.  A  second  clause 
provided  that  the  testator's  son,  D, 
shall  '"have  and  hold"  one-fourth  of 
the  testator's  property  "in  trust   (for 


904 


INDIANA    PROBATE    LAW. 


§514 


The  law  not  only  favors  the  vesting  of  an  estate,  and  will  so 
construe  the  terms  of  a  will,  if  possible,  but  it  also  presumes  that 
words  postponing  the  estate  relate  to  the  beginning  of  its  en- 
joyment and  not  to  the  period  when  the  estate  shall  vest/ 

Whenever  a  person  makes  a  will  it  is  presumed  that  he  dis- 


iiis  children  now  born,  or  which  may 
hereafter  be  born),  during  his  natural 
life,"  "with  the  right  to  use  any  in- 
come or  rents  of  said  property  to  aid 
in  raising  and  educating  said  child- 
ren," without  bond,  ''but  for  any 
waste  or  al)use  of  trust  [to]  be  re- 
moved, and  another  appointed  by  the 
court."  Held,  that  D  held  and  en- 
joyed his  fourth  part  in  trust  for  his 
children,  born  and  to  be  born,  for  his 
natural  life,  subject  to  the  trust  and 
duty  upon  his  part  to  appropriate  so 
much  of  the  rents,  profits  and  income 
as  was  necessary  for  the  purpose  of 
raising  and  educating  his  children; 
that  the  remainder,  in  fee-simple  and 
absolutely,  vested  in  D's  children, 
then  in  being,  subject  to  open  and  let 
in  any  other  children  born  thereafter. 
Kilgore  v.  Kilgore,  127  Iiul.  276,  26  X. 
E.  56. 

'Heilman  v.  Heilman,  129  Ind.  59, 
28  N.  E.  310;  Amos  v.  Amos,  117  Ind. 
Z7,  19  N.  E.  543 :  Harris  v.  Carpenter, 
109  Ind.  540,  10  N.  E.  422;  Davidson 
V.  Koehlcr,  76  Ind.  398;  Davidson  v. 
Bates,  111  Ind.  391.  12  N.  E.  687; 
Hoover  v.  Hoover,  116  Ind.  498,  19  N. 
E.  468;  Davidson  v.  Hutchins,  112 
Ind.  322,  13  N.  E.  106 ;  Doe  v.  Consi- 
dine,  6  Wall.  (U.  S.)  458,  18  L.  ed. 
869.  A  testator  devised  all  his  prop- 
erty to  his  wife  for  life,  directing  that 
at  her  death  what  remained  of  his  es- 
tate, in  her  hands,  should  be  equally 
divided  among  his  children  then  living 
and  the  descendants  of  such  as  might 


be  dead,  share  and  share  alike,  taking 
into  consideration  all  advancements, 
whether  made  by  himself  or  wife.  If 
it  should  be  necessary  in  order  to  pay 
debts  or  to  make  advancements,  the 
wife,  who  was  named  as  executrix, 
was  empowered  to  sell  all  or  any  part 
of  the  property,  upon  such  terms  as 
she  should  think  proper.  Held,  that 
the  will  devised  to  the  wife  an  estate 
for  life,  with  a  specific  power  of  dis- 
position, and  gave  to  the  testator's 
children  living  at  her  death,  and  the 
descendants  of  such  as  were  then 
dead,  a  vested  remainder,  and  that  the 
latter  took  per  stirpes  and  not  per  cap- 
ita. Wood  V.  Robertson,  113  Ind.  323, 
15  X.  E.  457;  see  Jenkins  v.  Compton, 
123  Ind.  117,  23  X.  E.  1091;  Crew  v. 
Dixon,  129  Ind.  85,  27  X.  E.  728. 
Where  a  bequest  of  personal  property, 
without  limitation  to  life  or  particular 
use,  is  made,  and  is  accompanied  by 
an  absolute  power  of  disposition,  the 
first  taker  takes  the  whole  interest. 
VanGordcr  v.  Smith,  99  Ind.  404;  Ful- 
lenwider  v.  Watson,  113  Ind.  18,  14  N. 
E.  571;  Tower  v.  Hartford,  115  Ind. 
186,  17  X.  E.  281.  A  bequest  to  named 
persons  jointly  of  "one-fifth  part  of  my 
estate,  after  my  just  debts  are  paid, 
and  not  otherwise  disposed  of,  to  re- 
main in  the  hands  of  my  executor  un- 
til they  become  of  age,"  vested  a  pres- 
ent and  equal  interest  in  the  legatees. 
Silvers  v.  Canary,  114  Ind.  129,  16  N. 
E.  166;  Aspy  v.  Lewis,  152  Ind.  493, 
52  X.  E.  756. 


§  515  CONSTRUCTIOX    OF    WILLS.  905 

poses  of  all  his  property  subject  to  such  disposition,  and  such 
construction  will  be  placed  upon  the  will  where  possible," 

§  515.  Conditions  in  restraint  of  marriage. — The  statute 
provides  that  "A  devise  or  bequest  to  a  wife,  with  a  condition 
in  restraint  of  marriage,  shall  stand,  but  the  condition  shall  be 
void."^ 

The  chief  difficulty  in  the  cases  interpreting  this  clause  of  the 
statute  has  been  to  decide  what  words  were  words  of  limitation 
and  what  only  words  of  condition.  As  defined,  "words  of  limi- 
tation mark  the  period  which  is  to  determine  the  estate;  but 
words  of  condition  render  the  estate  liable  to  be  defeated  in  the 
intermediate  time,  if  the  event  expressed  in  the  condition  arises 
before  the  determination  of  the  estate,  or  completion  of  the 
period  described  by  the  limitation.  The  one  specifies  the  utmost 
time  of  continuance,  and  the  other  marks  some  event,  which,  if 
it  takes  place  in  the  course  of  that  time,  will  defeat  the  estate.""* 

While  they  are  not  favorites  of  the  law,  yet  there  are  certain 
kinds  of  conditions  in  restraint  of  alienation  which  will  be  sus- 
tained. In  one  case  it  is  said :  "As  a  general  rule,  a  condition 
in  a  grant  or  devise  that  the  grantee  or  devisee  shall  not  alienate 
is  void  because  repugnant  to  the  estate,  but  a  condition  that  the 
grantee  or  devisee  shall  not  alienate  for  a  particular  time  or  to  a 
particular  person  or  persons  is  good."^ 

■  Carroll  v.  Swift,  10  Ind.  App.  170,  contingent  upon  some  event,  which  de- 

2)1  X.  E.  1061.  feats  the  precedent  estate,  and  who  is 

^Burns'  R.  S.  1908,  §  3123.  entitled  to  take  advantage  of  the  pro- 

^4  Kent  Com.  126;  Corey  v.  Spring-  hibited  act  or  use.     Conger  v.  Lowe, 

er,  138  Ind.  506,  Zl  N.  E.  322.  124  Ind.  368.  24  N.  E.  889,  9  L.  R.  K. 

^  Langdon  v.   Ingram,  28  Ind.  360 ;  165n.     Conditions  in  convej-ances,  or 

Andrews    v.    Spurlin,    35    Ind.    262;  devises  in  fee,  in  general  restraint  of 

Crawford  v.  Thompson,  91   Ind.  266,  the  power  of  alienation,  are  void,  as 

46  Am.  Rep.   598;  Fowler  v.    Maus,  being  contrar\-  to   the  policy  of  the 

141     Ind.     47,     40     N.     E.     56.     The  law,  and  inconsistent  with,  and  repug- 

foundation     of     the     power     to     re-  nant  to,  the  estate  granted.     Allen  v. 

strain     alienation     rests     upon     the  Craft,   109  Ind.  476,  9  N.  E.  919,  58 

fact  that  there  remains,  or  is  vested,  Am.  Rep.  425 ;  Fullenwider  v.  Watson, 

in  some  one  a  valid  remainder  or  re-  113  Ind.  18,  14  X.  E.  571. 
version,  whose  estate  in  possession  is 


9o6 


INDIANA    PROBATE    LAW. 


§515 


Where  a  devise  or  bequest  is  made  to  a  wife,  coupled  with  the 
condition  that  she  shall  not  marry  again,  such  devise  or  bequest 
will  be  sustained  and  the  condition  declared  void. 

An  estate  may  be  limited  to  a  wife  during  her  widowhood; 
but  if  the  testator  desires  to  devise  her  a  larger  estate,  as  for  life, 
or  in  fee,  and  makes  the  larger  estate  in  any  way  dependent  upon 
the  condition  that  she  shall  not  again  marry,  such  condition  will 
not  cut  down  the  estate  to  a  less  period  than  that  to  which  the 
will  limits  it,  but  will  l^e  regarded  as  void/  An  elementary 
writer  says,  upon  this  subject :  "It  has  been  already  remarked 
that  marriage  ought  to  be  free,  and  that  the  law  does  not  coun- 
tenance such  restrictions  as  unreasonably  deter  persons  from 
forming  that  relation.  Therefore,  a  devise,  upon  condition  not 
to  marry,  or  not  to  marry  a  person  of  such  a  profession  or  call- 
ing, is  void,  whether  there  be  a  limitation  over  or  not."^ 

Conditions  annexed  to  gifts,  legacies  and  devises  in  restraint 


•Harmon  v.  Brown,  58  Ind.  207; 
Coon  V.  Bean,  69  Ind.  474;  Tate  v. 
McLain,  74  Ind.  493 ;  Stilwell  v.  Knap- 
per,  69  Ind.  558,  35  Am.  Rep. 
240;  Summit  v.  Yount,  109  Ind. 
506,  9  N.  E.  582;  Sims  v.  Gay, 
109  Ind.  501,  9  N.  E.  120;  Hibbits  v. 
Jack,  97  Ind.  570,  49  Am.  Rep.  478; 
Crawford  v.  Thompson,  91  Ind.  266, 
46  Am.  Rep.  598;  Levengood  v. 
Hoople,  124  Ind.  27,  24  N.  E.  373; 
Wood  V.  Beasley,  107  Ind.  37,  7  N.  E. 
331;  O'Harrow  v.  Whitney,  85  Ind. 
140. 

'  Willard  Eq.  Jurisprudence,  525.  A 
testator  devised  lands  to  his  widow, 
gave  certain  legacies,  and  then  to  his 
widow  his  personal  property,  "on  con- 
dition that  she  pay  fifty  dollars  per 
year  to  my  daughter,  Martha  Fox," 
and  if  Martha  should  marry  a  second 
time  then  "she  shall  not  be  entitled  to 
said  legacy  from  that  time  on,"  and 
"when  said  Martha  shall  have  received 
an  amount  out  of  said  personalty  equal 
to  three-fourths  thereof,  she  shall  not 


l)c  entitled  to  any  more,  and  the  bal- 
ance shall  be  retained  by  my  said 
wife."  Martha  became  a  widow  and 
married  again  ;  the  widow  of  the  testa- 
tor also  married,  and  the  former  sued 
the  latter,  holding  the  property  given 
her  by  said  will,  and  her  husband,  to 
recover  an  installment,  accruing  after 
Martha's  second  marriage.  All  this, 
and  that  three-fourths  of  the  fund  had 
not  been  received  by  the  plaintiff,  ap- 
peared by  the  complaint.  Held,  that 
the  husband  of  the  principal  defend- 
ant was  a  proper  party,  and  the  com- 
plaint as  against  him  was  good  on  de- 
murrer. Held,  that  the  widow  did 
not  take  the  personal  property  upon  a 
condition  subsequent,  but  a  gift  to 
Martha  was  intended  to  be  paid 
through  her  mother  as  trustee.  Held, 
that  the  condition  subsequent  annexed 
to  the  gift  to  Martha  was  unreasona- 
ble, being  an  absolute  prohibition  of  a 
second  marriage,  and  was  void,  and 
the  plaintilif  was  entitled  to  recover. 
Crawford  v.  Thompson,  91  Ind.  266, 


515 


CONSTRUCTION    OF    WILLS. 


907 


of  marriage  absolutely,  and  which  act  as  a  general  prohibition  on 

marriage  are  void.*  in* 

A  gift  in  trust  upon  the  condition  that  the  beneficiary  shall  not 
marry  at  all,  will  vest  in  the  donee,  and  the  condition  is  void.« 
A  condition  subsequent  annexed  to  an  annuity,  m  restraint  of 
the  marriage  of  the  testator's  widow,  where  there  was  no  hmita- 
tion  over,  has  been  held  to  be  in  terrorem  merely  and  void.^« 

There  was  nothing  in  the  common  law  independent  of  the 
civil  law,  which  made  a  condition  restraining  a  widow  from  mar- 
riage void.  The  doctrine  is  a  combination  of  the  common  law 
and  the  civil  law  effected  by  the  ecclesiastical  and  equity  courts." 
But  where  the  words  used  in  the  will  are  in  the  nature  of  a 
limitation  and  not  a  condition,  the  estate  will  terminate  upon  the 


46    Am.    Rep.    598;    VanGorder    v. 
Smith,  99  Ind.  404. 

'Crawford  v.  Thompson,  91  Ind. 
266.  46  Am.  Rep.  598.  Where  the  lan- 
guage of  a  will  and  the  intention  of 
the  testator  admit  it,  bequests  ex- 
pressed to  be  "on  condition"  subse- 
quent are,  in  modern  times,  to  be  con- 
sidered as  imposing  a  trust,  and  not 
as  conditions  which  shall  take  the 
property  out  of  the  legatee  if  he  does 
not  comply  with  them. 

*  Mack  V.  Mulcahy,  47  Ind.  68 ; 
Perry  Trusts,  §  515.  Where  an  estate 
for  life,  or  years,  is  created  with  a  re- 
version to  the  grantor,  or  a  valid  re- 
mainder over  to  designated  persons, 
conditions  imposing  restrictions  and 
qualifications  upon  the  power  to  alien- 
ate or  use  the  estate  are  valid.  Con- 
ger V.  Lowe,  124  Ind.  368,  24  N.  E. 
889,  9  L.  R.  A.  165n. 

"Crawford  v.  Thompson,  91  Ind. 
266,  46  Am.  Rep.  598 ;  Parsons  v.  Win- 
slow,  6  Mass.  169,  4  Am.  Dec.  107n ; 
Pom.  Eq.  Jur.,  §  933 ;  Mack  v.  Mul- 
cahj',  47  Ind.  68.  Where  a  testator  de- 
vises real  estate  to  his  wife,  so  long 
as  she  remains  his  widow,  after  which 


it  is  to  be  equally  divided  among  his 
heirs,  the  widow's  estate  ceases  at  her 
marriage,  and  she  cannot  claim  as  an 
heir    on    its    termination.      Brown    v. 
Harmon,  11  Ind.  412 ;  Wood  v.  Beas- 
ley,  107  Ind.  Zl ,  1  N.  E.  331.    Where 
a   husband   dies,  leaving  a  wife  and 
two    children    surviving    him,    having 
devised  his  land  to  his  wife  during 
widowhood,  and  she  elects  to  accept 
the  provisions  made  for  her  by  will, 
her  estate  is  limited  in  duration  to  the 
period  of  her  widowhood,  and  a  pur- 
chaser through  a  mortgage  executed 
by  her   after  a  second  marriage   ac- 
quires no  title  to  any  part  of  the  land. 
And  in  such  case,  the  fact  that  no  dis- 
position  of   the   land   after  the  wife 
should  cease  to  be  a  widow  was  made, 
did  not  entitle  her  to  any  portion  of  it 
under  the  law,  as  her  election  to  take 
under    the    will    precluded    any    such 
claim.     O'Harrow  v.  Whitney,  85  Ind. 

140. 

"  Crawford  v.  Thompson,  91  Ind. 
266,  46  Am.  Rep.  598;  Newton  v. 
Ma'rsden.  2  J.  &  H.  356;  Stilwell  v. 
Knapper.  69  Ind.  558.  35  Am.  Rep.  240. 


9o8 


INDIANA    PROBATE    LAW. 


§515 


marriage  of  the  widow.  It  is  said  that  "tlie  technical  words  used 
to  create  a  limitation  are  conjunctions  relating  to  time,  such  as 
during,  while,  so  long  as,  until,  etc."''  The  law  is  now  well 
settled  that  a  husband  may  by  limitation  restrict  the  estate  of 
his  surviving  wife,  so  that  it  shall  terminate  with  her  marriage.*' 
A  man  may  devise  property  to  his  wife  during  her  widowhood, 
but  if  he  devises  to  her  an  estate  for  life  or  in  fee.  upon  condi- 
tion that  she  do  not  marry  again,  the  devise  is  good,  but  the  con- 
dition will  be  void.'* 


'^Tiedeman  Real  Prop.,  §  281.  A 
testator  devised  to  his  wife  and  heirs, 
"for  her  to  dispose  of  as  she  sees  best 

*  *  the  tract  of  land  now   living  on 

*  *  during  the  time  she  lives  a  widow, 
or  in  my  name.  Then  said  land  is  to 
be  divided  equally  amongst  the  pres- 
ent heirs  of  David  Rupert  and  Mary, 
his  wife,  or  the  proceeds  of  the  same, 
as  the  case  may  be."  Held,  that  the 
testator  devised  to  the  widow  an  es- 
tate during  widowhood  which  she 
might  have  conveyed.  Held,  also,  that 
tlie  widow  having  remarried  without 
disposing  of  said  estate,  the  estate 
ceased  upon  said  second  marriage,  and 
that  the  land  remained  for  distribu- 
tion amOng  the  children  of  the  appel- 
lee and  the  testator,  in  accordance 
with  the  terms  of  the  will.  Leven- 
good  V.  Hoople,  124  Ind.  21,  24  N.  E. 
2)12).  A  devise  of  lands  to  the  testa- 
tor's wife  ''so  long  as  she  shall  remain 
my  widow,"  contains  no  condition  in 
restraint  of  marriage  but  a  limitation, 
and  if  she  marries,  the  lands  go  to  the 
heirs  of  the  testator,  in  the  absence  of 
a  devise  over,  the  doctrine  of  the  case 
of  Spurgeon  v.  Scheible,  43  Ind.  216, 
being  repudiated.  Hibbits  v.  Jack,  97 
Ind.  570,  49  Am.  Rep.  478;  Summit  v. 
Yount,  109  Ind.  506,  9  N.  E.  582. 

"  Sims  V.  Gay,  109  Ind.  501,  9  N.  E. 
120;  Hibbits  V.  Jack,  97  Ind.  570,  49 
Am.   Rep.   478;    Tate  v.    McLain,   74 


Ind.  493;  O'Harrow  v.  Whitney.  85 
Ind.  140;  Brown  v.  Harmon,  12)  Ind. 
412;  Summit  v.  Yount,  109  Ind.  506, 
9  N.  E.  582;  Beshore  v.  Lytle,  114  Ind. 
8,  16  N.  E.  499;  Stilwell  v.  Knapper, 
69  Ind.  558,  35  Am.  Rep.  240 ;  Leven- 
good  V.  Hoople.  124  Ind.  27,  24  N.  E. 
2)11 ;  Conger  v.  Lowe,  124  Ind.  368,  24 
X.  E.  889,  9  L.  R.  A.  165n ;  Wood  v. 
Beasley,  107  Ind.  Zl ,  1  N.  E.  331,  over- 
ruling on  this  point,  Spurgeon  v. 
Scheible,  43  Ind.  216. 

'Mlarmon  v.  Brown,  58  Ind.  207; 
Coon  V.  Bean,  69  Ind.  474.  A  testator 
by  his  will  gave  his  widow  the  residue 
of  his  estate  after  the  payment  of  his 
debts,  "to  have  and  hold  and  use  as 
her  own  for  the  benefit  of  herself  and 
family,  so  long  as  she  remains  my 
widow,"  and  in  case  she  should  marry 
again,  "then  it  is  my  will  that  she 
should  only  take  what  the  law  pro- 
vides for  widows  of  men  who  die  in- 
testate, and  that  the  residue  be  di- 
vided among  my  children  according 
to  law."  The  will  provided  also  that 
if  the  widow  remained  unmarried  un- 
til her  death,  then  all  the  residue  of 
his  estate  should  be  sold  at  public 
sale,  and  that  the  proceeds  should  be 
equally  divided  among  his  children, 
taking  into  consideration  advance- 
ments made  by  him,  or  which  his 
widow  might  make  to  any  of  the  chil- 
dren.    Held,  that  if  the  widow  took 


I  ri5  CONSTRUCTION    OF    WILLS.  9^9 

§  516.  When  a  devise  shall  not  lapse.— The  statute  pro- 
vides that:  "Whenever  an  estate,  real  or  personal,  shall  be  de- 
vised to  any  descendant  of  the  testator,  and  snch  devisee  shall  die 
during  the  lifetime  of  the  testator,  leaving  a  descendant  who 
shall  survive  such  testator,  such  devise  shall  not  lapse,  but  the 
property  so  devised  shall  vest  in  the  surviving  descendant  of  the 
devisee  as  if  such  devisee  had  survived  the  testator  and  died  in- 
testate.'"' The  general  rule  of  law  is  that  where  the  legatee  dies 
before  the  testator  the  legacy  will  lapse,  but  this  statute  creates 
an  exception  to  this  general  rule,  and  instead  of  lapsing,  the  de- 
vise or  legacy  will  vest  in  the  surviving  descendant  of  the  de- 
visee. The  word  descendant  used  in  this  statute  refers  exclusive- 
ly to  lineal  descendants,  or  heirs  in  the  direct  descending  line, 
and  does  not  apply  to  kindred  of  the  collateral  line ;  nor  is  there 
any  distinction  made  in  this  state  between  lapsed  devises  of  real 
estate  and  lapsed  bequests  of  personal  property;  both  are  placed 
on  precisely  the  same  footing.'" 

Under  this  statute  the  widower  of  a  deceased*  devisee  is  not 
her  descendant,  and  can  take  no  part  of  such  a  devise  or  legacy." 

If,  however,  the  legatee  or  devisee  dies  during  the  life  of  the 
testator  and  leaves  no  descendant  the  legacy  or  devise  will  lapse, 
and  will  fall  into  the  residuum  and  pass  to  the  residuary  legatee, 

under  the  will  she  would  take  but  a  scendant.  Maxwell  v.  Featherston,  83 
life-estate  in  the  real  estate,  in  case  Ind.  339;  Collins  v.  Collins,  126  Ind. 
she  should  remain  unmarried.  Held.  559,  25  N.  E.  704,  28  N.  E.  190.  A 
that  as  executrix  she  should  not  con-  testator  may  provide  agamst  the  laps- 
vert  the  real  estate,  or  any  part  there-  ing  of  a  legacy  by  designating  to 
of,  into  money,  for  the  support  of  whom  the  legacy  shall  go  m  case  of 
herself  and  children,  or  for  payment  the  death  of  the  first  legatee.  Borg- 
of  debts  contracted  by  her  for  such  ner  v.  Brown,  133  Ind.  391,  33  X.  E. 
support.  Tate  v.  McLain,  74  Ind.  493.  92.  If  a  devise  is  made  to  a  brother 
'^  Burns'  R.  S.  1908,  §  3127.  Tay-  of  the  testator,  and  the  brother  dies 
lor  v.  Conner,  7  Ind.  115;  Clendening  before  the  testator,  the  devise  will 
v  Clymer,  17  Ind.  155 ;  Cunningham  lapse.  West  v.  West,  89  Ind.  529. 
V  Dungan,  83  Ind.  572.  If  a  legatee  "West  v.  West,  89  Ind.  529;  Hol- 
dies  before  the  testator,  the  legacy  brook  v.  McCleary,  79  Ind.  167 ;  Max- 
will  lapse  unless  the  legatee  was  a  de-  well  v.  Featherston,  83  Ind.  339. 
scendant  of  the  testator  and  left  a  de-        "  Prather  v.  Prather,  58  Ind.  141. 


910 


INDIANA    PROBATE    LAW. 


S  5 


i6 


if  one  is  named  in  tlie  will,  otherwise  to  the  heirs  of  the  testator 
by  descent." 

Where  a  life  estate  has  been  devised  to  one  and  the  fee  to  an- 
other, the  death  of  the  devisee  of  the  fee  during  the  continuance 
of  the  life  estate  will  not  cause  the  devise  of  the  fee  to  lapse  for 
the  reason  that  the  fee  became  vested  at  the  death  of  the  testa- 
tor.^" For  it  is  a  general  rule,  well  affirmed  by  the  authorities, 
that  a  legacy  or  devise  will  not  lapse,  after  it  has  once  vested 
solely  because  the  legatee  or  devisee  dies  before  the  testator.^" 

Where  it  appears  that  a  bequest  or  devise  was  made  to  dis- 
charge a  duty  or  obligation  resting  upon  the  testator,  this  will 
preclude  a  lapse  although  the  legatee  or  devisee  may  die  during 
the  lifetime  of  the  testator.  The  rule  is  well  settled  that  a  be- 
quest made  in  payment  of  a  debt  does  not  lapse  by  the  death  of 
the  legatee  prior  to  that  of  the  testator.^^  And  a  testator  may 
by  express  provisions  in  his  will  prevent  the  lapse  of  a  devise  in 
case  of  the  predecease  of  the  legatee  or  devisee,  and  the  lapse 


'"  Collins  V.  Collins,  12o  Ind.  559,  25 
N.  E.  704,  28  N.  E.  190 ;  Holbrook  v. 
McCleary.  79  Ind.  167;  Maxwell  v. 
Featherston,  83  Ind.  339;  Wtst  v. 
West,  89  Ind.  529.  A  devises  to  B, 
his  wife,  a  life  estate  in  certain  real 
estate,  and  devises  the  remainder  after 
her  death  to  C,  his  son,  and  if  C 
should  die  without  issue,  then  one- 
third  of  said  real  estate  to  "descend" 
to  his  (C's)  wife,  if  living,  and  the  re- 
mainder to  go  to  A's  children.  Held, 
that  if  C  should  survive  A  he  (C) 
would  take  absolutelj-  the  remainder 
limited  on  the  life  estate,  and  in  the 
event  of  C's  death  before  A,  C's  wife 
would  take  one-third  of  said  land 
and  the  remaining  two-thirds  would 
go  to  A's  children.  Held,  also,  that 
the  provision  of  the  will,  disposing  of 
the  real  estate  in  case  of  C's  death, 
had  reference  to  the  death  of  C  be- 
fore the  death  of  the  testator.  Held, 
also,  that  the  word  "descend,"  as  used 


tn  the  will,  must  be  construed  in  the 
sense  of  to  go,  so  as  not  to  defeat  the 
evident  intention  of  the  testator,  such 
sense  being  the  common  and  ordinary 
one.  Held,  also,  that  upon  the  death 
of  C's  widow,  she  having  married 
again,  her  husband  held  an  interest  in 
the  land  so  obtained  by  her.  Borg- 
ner  v.  Brown,  133  Ind.  391,  33  X.  E. 
92.  A  lapsed  legacy  or  devise  goes 
into  the  residuum  of  the  estate  and 
passes,  under  the  residuary  clauses  of 
the  will,  to  the  residuary  devisees  or 
legatees,  or  their  decendants.  Hol- 
brook v.  McCleary,  79  Ind.  167.  The 
word  "descendant,"  as  used,  means  an 
heir  in  the  descending  line,  and  can- 
not include  collateral  kindred,  such  as 
a  brother.     West  v.  West,  89  Ind.  529. 

"•Allen  V.  Mayfield,  20  Ind.  293. 

="  18  Am.  &  Eng.  Encyc.  Law,  p.  750. 

=^  Ballard  v.  Camplin,  161  Ind.  16,  67 
N.  E.  505. 


,i6 


CONSTRUCTION    OF    WILLS. 


911 


of  the  bequest  will  also  be  prevented  or  precluded  by  a  clear  im- 
plication of  the  intent  of  the  testator  to  that  effect. ^^ 

The  testator  may,  if  he  thinks  fit,  prevent  a  devise  from  lapsing 
by  declaring  expressly,  or  in  such  terms  that  his  intention  cannot 
be  misunderstood,  what  person  or  persons  he  intends  to  sub- 
stitute for  any  legatee  who  may  die  in  his  lifetime.-^ 

A  construction  of  a  will  which  will  result  in  intestacy  or  a 
partial  intestacy  must,  if  possible,  be  avoided.  So  to  avoid  the 
lapsing  of  a  legacy  the  word  "descent"  will  be  construed  to  mean 
''to  go,"  for  the  purpose  of  carrying  out  the  evident  intention  of 
the  testator.^* 

In  the  absence  of  a  residuary  clause  in  a  will,  or  some  other 


"  18  Am.  &  Eng.  Encyc.  Law,  p. 
753,  Ballard  v.  Camplin,  161  Ind.  16, 
67  N.  E.  505. 

^  Borgner  v.  Brown,  133  Ind.  391, 
33  X.  E.  92;  Hutchinson's  Appeal,  34 
Conn.  300;  2  Redf.  Wills,  163;  1  Jar. 
Wills,  619.  The  former  distinction 
between  lapsed  bequests  and  lapsed 
devises,  as  to  their  disposition,  is  de- 
stroyed. West  V.  West,  89  Ind.  529. 
If  a  legatee  or  devisee  named  in  a 
will,  who  is  not  a  descendent  of  the 
testator,  dies  before  the  testator,  the 
legacy  or  devise  will  lapse  without  re- 
gard to  whether  the  legatee  or  devisee 
left  descendants  or  not.  Maxwell  v. 
Featherston,  83  Ind.  339. 

"■*  Mills  v.  Franklin,  128  Ind.  444,  28 
N.  E.  60;  Roy  v.  Rowe,  90  Ind.  54; 
Borgner  v.  Brown,  133  Ind.  391,  33  N. 
E.  92;  Gate  v.  Cranor,  30  Ind.  292; 
Spurgeon  v.  Scheible,  43  Ind.  216; 
Beach  on  Wills,  520;  Morgan  v.  Mc- 
Neeley,  126  Ind.  537,  26  N.  E.  395.  A 
testator,  by  his  will,  gave  five  hundred 
dollars  to  his  granddaughter,  who 
died  at  the  age  of  twenty-five,  and  be- 
fore the  testator,  leaving  one  infant 
child,  J.  A  codicil  provided  that  the 
legacy  of  any  one  dying  in  infancy 
should  go  to  his  or  her  children,  if 


any,  and  that  the  "legacies"  should 
only  be  paid  to  those  respectively  who 
have  arrived  at  full  age.  Held,  that 
J  took  the  share  of  his  mother,  not 
under  the  will,  but  by  virtue  of  the 
statute,  and  that  payment  to  him  could 
not  be  delayed  until  his  majority. 
Cunningham  v.  Dungan,  83  Ind.  572. 
A  testator  devised  all  of  his  real  es- 
tate to  his  wife  for  life.  Subject  to 
the  wife's  life  estate  he  devised  a  cer- 
tain portion  of  said  real  estate  to  his 
son  and  the  remainder  to  his  daugh- 
ter. The  daughter  and  her  only  child 
died  in  the  testator's  lifetime,  and  the 
son  soon  after  his  father.  The  widow 
elected  to  take  under  the  will.  Held, 
that  the  devise  to  the  daughter  lapsed, 
there  being  no  residuary  legatee,  and 
as  to  the  real  estate  devised  to  her  the 
testator  died  intestate.  Held,  also, 
that  as  to  the  real  estate  devised  to 
the  son  the  widow's  election  to  take 
under  the  will  divested  her  of  her  one- 
third  interest.  Held,  also,  that  the 
widow,  because  of  her  election,  was 
divested  of  her  one-third  in  the  lands 
devised  to  the  daughter,  but  retained 
a  one-sixth  interest  therein.  Collins 
V.  Collins,  126  Ind.  559,  25  X.  E.  704, 
28  N.  E.  190. 


912  INDIANA    PROBATE    LAW.  §  5^7 

disposition  of  a  lapsed,  void  or  refused  legacy  or  devise,  as  to  that 
part  of  his  estate  the  testator  has  died  intestate,  and  it  will  de- 
scend to  his  heirs.^* 

§  517.  A  devise  of  rents  and  profits. — W  here  by  a  will  the 
rents  and  prohts  of  land  have  been  devised  to  one  for  a  time, 
such  devise  gives  to  the  devisee  the  right  to  the  possession  of  the 
land  for  the  time.  It  is  said  to  be  equivalent  to  a  devise  of  the 
land  itself,  and  will  carry  the  legal  as  well  as  the  beneficial  inter- 
est therein." 

Or,  as  has  been  further  said,  "a  devise  of  the  rents  and  profits 
or  of  the  income  of  lands  passes  the  land  itself,  both  at  law  and 
in  equity,"  and  a  devise  of  the  "free  use,"  or  of  the  use  and  occu- 
pation of  land,  passes  an  estate  in  the  land,  and  consequently  a 
right  to  let  or  assign  it,  and  is  not  confined  to  the  personal  use 
or  occupation  of  the  property,  unless  the  context  clearly  calls  for 
the  more  limited  construction."  A  devise  of  the  proceeds  of 
real  estate  is  not  materially  diflferent  from  a  devise  of  the  income, 
and  the  rule  is  that  a  devise  or  grant  of  the  income  of  land  car- 
ries an  estate  in  the  land  itself.-' 

"*  Garrison  V.  Day,  36  I nd.  App.  543,  be    construed    together    and    held    to 

76  X.  E.  188.  mean,  that  so  long  as  the  real  estate 

^  Thompson  v.  Schenck.  16  Ind.  194 ;  remains  unsold  the  widow  shall  have 

2  Jarman  on  Wills,  381 ;  Gulick  v.  Gu-  the  rents  and  profits,  and  after  sale 
lick,  25  N.  J.  Eq.  324.  A  bequest  of  the  interest  on  the  purchase-money, 
the  rents  and  profits  of  real  estate,  Davis  v.  Hoover,  112  Ind.  423,  14  X. 
either    for    life    or    for    a    period    of  E.  468. 

years,  without  limitation  or  condition,  "'Williams  v.  Owen,  116  Ind.  71,  18 
entitles  the  devisee  to  the  possession  X.  E.  389;  Bowen  v.  Swander,  121 
and  control  of  the  property  devised.  Ind.  164,  22  X.  E.  725;  Hunt  v.  Will- 
Thompson  V.  Murphy,  10  Ind.  App.  iains,  126  Ind.  493,  26  X.  E.  177;  But- 
464,  27  N.  E.  1094.  terfield  v.  Haskins,  33  IMe.  392 ;  Reed 
="2  Jar.  Wills.  403-5;  Stout  v.  Dun-  v.  Reed,  9  Alass.  372;  Fox  v.  Phelps, 
ning,  72  Ind.  343;  Carlyle  v.  Cannon,  17  Wend.  (X.  Y.)  393;  3  Wash.  Real 

3  Rawie  (Pa.)  489.  Where,  by  one  Prop.,  405,  465;  2  Redf.  Wills,  334. 
item  of  his  will,  a  testator  devises  to  Under  a  will  leaving  property  to  a 
his  wife  for  life  the  rents  and  profits  widow  for  life,  at  her  death  to  be  dis- 
of  his  real  estate,  and  by  a  subsequent  tributed  between  her  children,  and,  in 
item  directs  that  the  property  be  sold  case  any  child  be  dead  leaving  chil- 
and  the  proceeds  loaned  for  the  bene-  dren,  such  children  to  take  their  pa- 
fit  of  his  w-ife,  the  two  provisions  will  rent's  share,  children  of  testator  take 


§  517  CONSTRUCTION    OF    WILLS.  913 

A  devise  to  the  wife  of  the  devisor  of  the  use  and  benefit  of 
all  the  real  and  personal  estate  of  the  testator  as  long  as  she  re- 
mains a  widow,  gives  to  her  a  life  estate  in  the  property  de- 
vised.^'^ 

A  devise  as  follows :  "She  shall  be  entitled  to  a  living  off  my 
said  land  until  she  shall  marry,  and  if  she  shall  not  marry,  then 
until  her  death,"  was  held  to  give  the  devisee  a  life  estate  in  the 
land,  upon  condition  that  she  remain  unmarried.^" 

A  devise  of- ''one-half  the  proceeds,  from  year  to  year,  of  my 
farm,"  is  equivalent  to  a  devise  of  one-half  the  rents,  issues  and 
profits  from  such  farm  and  vests  in  the  devisee  an  interest  in 
the  land.^^ 

A  bequest  of  the  rents  and  profits  of  real  estate,  either  for  life 
or  for  a  period  of  years,  without  limitation  or  condition,  entitles 
the  devisee  to  the  possession  and  control  of  the  property  devised.^^ 

The  old  rule  that  a  general  devise  of  real  estate,  merely  describ- 
ing the  property,  without  defining  the  interest  to  be  taken  therein 
by  the  devisee,  gives  to  such  devisee  only  a  life  estate  is  yet  in 
force  in  this  state,  although  it  has  been  abolished  in  many  of  the 
states  as  well  as  in  England. ^^  It  is  a  rule  which  often  operates 
in  contradiction  of  the  other  rule  that  the  testator's  intention 
shall  prevail,  for  it  will  usually  be  supposed  that  a  general  devise, 
without  any  limitation,  will  carry  the  whole  estate  of  the  testator. 
For  this  reason  courts  are  always  ready  to  adopt  any  plausible 
excuse  for  rescuing  particular  cases  from  the  wrong  direction 
given  them  by  the  general  rule,  and  where  a  will  gives  to  the  tes- 
tator's widow  "all  that  remains  of  the  estate  after  paying  the 
debts,  for  her  support,"  and  there  were  no  further  provisions,  no 

a   conditional   fee,   subject   to   be   de-  X.  E.  177 ;  CarMe  v.  Cannon,  3  Rawle 

feated    by    their    death    before    the  (Pa.)  489. 

widow.     Corey  v.    Springer,   138   Ind.  "  Thompson    v.    IMurphy,     10    Ind. 

506,  yj  N.  E.  Z22.  App.  464,  Zl  N.  E.  1094;  Hunt  v.  Will- 

=•  Rumsey   v.    Durham,    5    Ind.    71 ;  iams.  126  Ind.  493,  26  N.  E.  177. 

Thompson   v.    Schenck,    16   Ind.    194 ;  "^  Cleveland  v.  Spilman,  25  Ind.  95 ; 

Stout  V.  Dunning,  12  Ind.  343.  Smith  v.  Meiser,  51  Ind.  419;  Mills  v. 

"^  Commons   v.   Commons,   115   Ind.  Franklin,  128  Ind.  444,  28  N.  E.  60; 

162,  16  N.  E.  820,  17  N.  E.  271.  Ross  v.  Ross,  135  Ind.  367,  35  N.  E.  9. 

^  Hunt  V.  Williams,  126  Ind.  493,  26 

5S— Pro.  L.\w. 


914 


INDIANA    PROBATE    LAW.  §  5l8 


residuary  clause,  etc.,  it  was  held  the  widow  took  the  estate  in 
fee  simple.^* 

While  it  is  the  rule  that  the  devise  of  the  rents  and  profits,  or 
of  the  income  of  the  land,  is  in  legal  effect  a  devise  of  the  land, 
yet  this  is  only  a  convenient  expression  to  indicate  a  rule  of  con- 
struction, that  by  the  gifts  of  rents,  income,  profits,  use.  occu- 
pation, improvement,  etc.,  the  testator  is  presumed,  in  the  ab- 
sence of  the  expression  of  any  contrary  intention,  to  have  given 
the  land  itself;  and  any  expression  in  the  will  inconsistent  with 
such  intention  will  be  sufficient  to  defeat  a  devise  of  the  land  by 
the  gift  of  the  rents  and  profits  only.''' 

The  gift  of  interest,  or  income,  in  like  manner,  as  a  general 
rule,  carries  with  it  the  fund  itself,  and  is  governed  by  analogous 
principles.^" 

§  518.  The  rule  in  Shelley's  Case. — Tn  construing  devises 
of  real  estate  made  by  will  there  is  a  rule  which  is  at  variance 
with  the  ordinaiy  rules  of  construction.  As  is  said  by  one  law- 
writer :  "While  the  latter  seek  for  the  intention  of  parties,  and 
strive  at  its  accomplishment,  the  former  combats  the  intention, 
a  conflict,  which  frequently  raises  immense  difficulties  as  to 
whether  the  rule  or  the  intention  should  prevail.  Two  estates  are 
created,  a  particular  estate  in  the  ancestor  and  a  remainder  in 
his  heirs.  In  the  absence  of  the  rule  the  heir  would  have  an  orig- 
inal and  independent  estate  by  purchase,  not  derived  from  or 
controllable  by  his  ancestor;  but  the  operation  of  the  rule  places 
the  whole  power  over  the  inheritance  in  the  ancestor,  who  can 
partially   or   totally   defeat   the   expectation  of   his   relations."" 

"  Morgan  v.  McXecley,  126  Ind.  537,  8  S.  E.  410;  Kline,  Appeal  of,  117  Pa. 

26  N.  E.  395:  Roy  v.  Rowe,  90  Ind.  St.  139,  11  Atl.  866;  Skinner  v.  Spann, 

54;  2  Redf.  Wills,  327;  Ross  v.  Ross,  —  Ind.  — ,  93  N.  E.  1061. 

135  Ind.  367.  35  N.  E.  9.  ''  In  re  Bruch's  Estate,  185  Pa.  St. 

^"Diament  v.  Lore,  31  X.  J.  L.  220;  194,  39  Atl.  813;  Durfee  v.  Pomeroy, 

Bowen  v.  Payton,  14  R.  I.  257 ;  Gray  154  X.  Y.  583,  49  X.  E.  132 ;  Gulick  v. 

V.  West,  93  N.  Car.  442.  53  Am.  Rep.  Gulick,  27  X.  J.  Eq.  498;  Hopkins  v. 

462 ;  Nudd  v.  Powers,  136  Mass.  273 ;  Keazer,  89  Me.  347,  36  Atl.  615. 

Eskridge  v.  Farrar,  34  La.  Ann.  709;  ^'Wharton's    Law    Diet.,   693;    Mc- 

University  v.  Tucker,  31  W.  Va.  621,  Cray  v.  Lipp,  35  Ind.  116. 


§  5l8  CONSTRUCTION    OF    WILLS.  915 

This  rule  of  limitation  is  what  is  known  as  the  rule  in  Shelley's 
Case,  and  is  the  law  in  Indiana,  although  it  has  been  abolished 
in  many  of  the  states  of  the  Union.  The  rule  is  thus  stated : 
"Where  a  freehold  is  limited  to  one  for  life,  and  by  the  same  in- 
strument the  inheritance  is  limited,  either  mediately  or  immedi- 
ately, to  heirs  or  heirs  of  his  body,  the  first  taker  takes  the  whole 
estate,  either  in  fee-simple  or  in  fee-tail;  and  the  word  'heirs'  or 
'heirs  of  the  body'  are  words  of  limitation  and  not  of  purchase."^^ 
A  thorough  understanding  of  the  application  of  this  rule  is  of 
great  practical  importance,  both  in  drawing  wills  and  in  constru- 
ing their  provisions. 

The  rule  applies  to  grants  or  devises  of  real  estate  only,  and 
not  to  personal  property.^^  And  by  the  rule  the  estate  must  be 
conveyed  to  heirs  and  vest  without  condition  or  contingency.*" 

It  has  been  held  that  under  this  rule  a  devise  to  one  for  life, 
and  after  his  death  to  his  issue  or  issue  of  his  body  in  this  state, 
creates  in  the  first  taker  a  fee-simple  estate;"  but  where  the 
words  "child"  or  "children"  are  used  in  devising  real  estate,  they 
are  to  be  construed  as  words  of  purchase  and  not  of  limitation, 
and  the  rule  in  Shelley's  Case  does  not  apply. *" 

^'Mcllhinny  v.  Mcllhinny,  137  Ind.  De  Witt  H.  Lanphear  die  leaving  a 

411,  7u  N.  E.  147,  45  Am.  St.  186,  24  wife,  his  said  wife  to  have  a  life  es- 

L.  R.  A.  489.     Where  a  life  estate  is  tate  in  said  real  property,  said  estate 

created  in   a   devisee  named   and  the  to  terminate  at  her  death,"  vested  in 

same    will    devises    the    remainder   to  the  son,  unmarried  and  childless  at  the 

other   devisees   who  are   named,   and  testator's    death,    only    a    life    estate, 

their  lawful  heirs,  such  other  devisees  Ridgeway  v.  Lanphear,  99  Ind.  251. 
take  an  estate  in  fee  simple.    Shimer        ^"-  Gonzles  v.  Barton,  45  Ind.  295. 
v.  Mann,  99  Ind.  190,  50  Am.  Rep.  82 ;        '=  Andrews  v.   Spurlin,  35  Ind.  262. 

Hochstedler  v.   Hochstedler,   108  Ind.  Where  the  testator  in  his  will  devises 

506,  9  N.  E.  467.  an  estate  to  his  son  for  life,  and  pro- 

^Siceloff  V.  Redman.  26  Ind.  251.  vides  that  at  the  son's  death  the  pcr- 

''*  Helm  V.  Frisbie,  59  Ind.  526.     A  sons  who  would  have  inherited  from 

devise  of  real  estate  by  a  testator  to  the  son,  had  he  owned  the  fee  at  the 

his  son  "during  his  natural  life,  and  time  of  his  death,  shall  take  the  same 

at  his  death  to  his  children,  if  he  have  and  in  the  same  proportion  as  the  law 

any;  and  if  he  have  no  children,  or  if  would  cast  it  upon  them,  and  declares 

there  be  no  heirs   of  his  body,   then  that  the  provisions  of  the  item  shall 

the  real  estate  to  his  other  heirs  of  "only  vest  in  the  devisee  a  life  estate 

his  own  blood  equally;  and  if  the  said  *     *     *     and  no   more,"   the    rule    in 


9i6 


INDIANA    PROBATE    LAW. 


§518 


The  term  "legal  heirs,"  when  used  in  a  will,  will  be  construed 
to  mean  "child"  or  "children"  when  it  clearly  appears  from  the 
will  that  the  testator  used  it  in  that  sense." 

The  term,  "heirs  of  the  body,"  means  such  of  the  issue  or  off- 
spring as  may  lawfully  inherit.** 

But  the  term  "heirs"  is  one  of  limitation,  and  has  a  fixed  and 
legal  meaning,  and  a  mere  presumed  intention  will  not  control 
its  signification.  It  will  not  be  construed  as  a  word  of  purchase 
unless  the  testator's  intention  to  so  use  it  appears  manifest  from 
the  whole  instrument.*" 

The  court  in  one  case  says:  "We  do  no  violence  to  the  well- 
established  rule  that  in  the  construction  of  wills  we  look  to  the 
four  corners  thereof  and  the  intention  of  the  testator  as  the  main 
and  controlling  question,    for  the   reason   that  when   the   word 


Shelley's  Case  does  not  apply  and  the 
son  takes  only  a  life  estate.  Eam- 
hart  V.  Earnhart,  127  Ind.  397,  26  N. 
E.  895,  22  Am.  St.  652. 

"Underwood  v.  Robbins,  117  Ind. 
308,  20  N.  E.  230 ;  Jones  v.  Miller,  13 
Ind.  ZZ7 ;  Levengood  v.  Hoople,  124 
Ind.  27,  24  X.  E.  2,7Z;  Smith  v.  Hun- 
ter, 2Z  Ind.  580;  Rusing  v.  Rusing,  25 
Ind.  63;  Rapp  v.  Matthias,  35  Ind.  Z2>1\ 
Ridgeway  v.  Lanphear,  99  Ind.  251  ; 
Pate  V.  French,  122  Ind.  10,  23  N.  E. 
673;  Waters  v.  Bishop,  122  Ind.  516, 
24  N.  E.  161 ;  Griffin  v.  Ulen,  139  Ind. 
565,  39  N.  E.  254. 

^nVaters  v.  Bishop,  122  Ind.  516,  24 
N.  E.  161. 

"  Doe  V.  Jackman,  5  Ind.  283 ;  Con- 
ger V.  Lowe,  124  Ind.  368,  24  N.  E. 
889,  9  L.  R.  A.  16Sn;  Siceloff  v. 
Redman,  26  Ind.  251;  Allen  v.  Craft, 
109  Ind.  476,  9  N.  E.  919,  58  Am. 
Rep.  425;  Reddick  v.  Lord,  131  Ind. 
Z2>6,  30  N.  E.  1085 ;  Fowler  v.  Duhme, 
143  Ind.  248,  42  N.  E.  623.  In  the  first 
item  of  a  will  the  testatrix  devised  an 
undivided  half  of  certain  lands  in  fee- 


simple,  to  her  son ;  and  the  second 
item  was  of  the  following  tenor:  "I 
give  and  devise  to  my  daughter,  Bar- 
bara Will,  now  Burkhart,  the  remain- 
ing undivided  one-half  of  said  farm, 
during  her  natural  life,  and,  after  her 
decease,  that  said  estate  is  to  go  to 
her  lawful  heirs."  Held,  that  the  de- 
vise in  the  second  item  is  governed  by 
the  rule  in  Shelley's  Case,  the  word 
"heirs"  being  a  word  of  limitation  and 
not  of  purchase.  Held,  also,  that  be- 
fore the  court  can  conclude  that  the 
testatrix  employed  the  word  "heirs" 
in  a  sense  different  from  that  assigned 
it  by  law,  it  must  be  clearly  shown  by 
the  context  that  the  testatri.x  em- 
ployed the  word  as  one  of  purchase 
and  not  of  limitation.  Perkins  v.  Mc- 
Connell,  136  Ind.  384,  36  N.  E.  121. 
A  devises  to  M  A,  "and  her  heirs  for- 
ever," where  it  appears  that  the  word 
"heirs"  was  used  as  a  word  of  limita- 
tion, vests  in  the  first  taker,  under  the 
rule  in  Shelley's  Case,  an  estate  in  fee. 
Allen  V.  Craft,  109  Ind.  476.  9  N.  E. 
919,  58  Am.  Rep.  425. 


g  ti8  CONSTRUCTION    OF    WILLS.  917 

'heir'  is  used  as  a  word  of  limitation  it  expresses  the  intention 
'of  the  testator  to  devise  an  estate  in  fee  simple."" 

While  this  rule  is  declared  to  be  a  law  of  property  in  Indiana, 
the  Supreme  Court,  in  one  case,  says:  "It  will  not  in  any  case 
be  allowed  to  overrule  the  manifest  intent  of  the  testator,  pro- 
vided such  intention  be  not  unlawful  or  inconsistent  with  the 
rules  of  law.  The  rule  is  not  designed  to  give  meaning  to  words, 
but  to  fix  the  nature  and  quality  of  an  estate.  Whenever,  then, 
the  matter  becomes  certain  that  the  term  heirs  is  used  with  an 
intent  that  they  should  take  as  purchasers,  the  instrument  should 
be  so  construed.  Indeed,  there  is  no  rule  that  can  guide  us  safely 
through  the  numerous  cases  and  apparent  conflict  of  authorities 
on  this  subject,  save  that  which  looks  to  the  intent  of  the  tes- 
tator."*^ 

It  is  not,  however,  always  the  presumed  or  actual  intention  of 
the  testator,  but,  as  contra-distinguished  therefrom,  his  legal  in- 
tention that  must  be  enforced;  and  the  rule  is  sometimes  unques- 
tionably enforced  when  its  enforcement  defeats  the  intention  and 
actual  purpose  of  the  testator."'^ 

As  to  the  effect  of  the  application  of  the  rule  it  is  said :  "It 
has  seemed  to  many  that  there  is  a  conflict  between  the  rule  de- 
claring that  the  intention  of  the  testator  must  govern,  and  the 

**Lee  V.  Lee,  45  Ind.  App.  645,  91  368,  24  X.  E.  889,  9  L.  R.  A.  165n; 

N.   E.   507;   Teal   v.   Richardson,   160  Allen  v.  Craft,  109  Ind.  476,  9  N.  E. 

Ind.  119,  66  N.  E.  435;  Lamb  v.  Med-  919,  58  Am.  Rep.  425.   A  devise  of  the 

sker,  35'lnd.  App.  662,  74  N.  E.  1012;  rents  and  profits  of  lands  to  M  until 

Burton  v.  Carnahan,  38  Ind.  App.  612,  his   youngest    child    shall   become    of 

78  N.  E.  682.  age,   "upon   the   happening   of   which 

"Doe  V.  Jackman,  5  Ind.  283;  event  the  fee-simple  of  said  lands 
Hochstedler  v.  Hochstedler,  108  Ind.  shall  then  vest  absolutely  in  said  M 
506 ;  9  N.  E.  467 ;  Shimer  v.  Mann,  99  and  his  heirs,  and  may  by  him  or 
Ind.  190,  50  Am.  Rep.  82;  Allen  v.  them  be  disposed  of  as  he  or  they 
Craft,  109  Ind.  476,  9  N.  E.  919,  58  Am.  may  judge  best  for  his  or  their  inter- 
Rep.  425;  Jenkins  v.  Compton,  123  est,"  vests  in  M  an  estate  in  fee-sim- 
Ind.  117,  23  N.  E.  1091.  pie  when  his  youngest  child  reaches 

*"  Bigg's  V.  McCarty,  86  Ind.  352,  44  full   age,  there  being  nothing  in   the 

Am.    Rep.   320;    McCray  v.    Lipp,   35  context    or    situation    of    the    parties 

Ind.  116;  Siceloff  v.  Redman,  26  Ind.  plainly  indicating  a  different  intention. 

251 ;  Millett  v.  Ford,  109  Ind.  159,  8  Shimer  v.  Mann,  99  Ind.  190,  50  Am. 

N.  E.  917;  Conger  v.  Lowe,  124  Ind.  Rep.  82. 


9i8 


INDIANA    PROBATE    LAW. 


§518 


rule  in  Shelley's  Case;  but  this  appearance  of  conflict  fades  away 
when  it  is  brought  clearly  to  mind  tiiat,  when  the  word  'heirs' 
is  used  as  a  word  of  limitation,  it  is  treated  as  conclusively  ex- 
pressing the  intention  of  the  testator.  Where  it  appears  that  the 
word  was  so  used,  the  law  inexorably  fixes  the  force  of  the  in- 
strument. If  once  it  is  granted  thai  the  word  was  used  in  its 
strict  legal  sense,  nothing  can  avert  the  operation  of  the  rule  in 
Shelley's  Case."^"  The  rule  in  Shelley's  Case  is  not  regarded  as 
a  device  to  discover  the  intention  of  a  testator,  but  is  only  applied 
after  such  intention  has  been  discovered,  when,  by  its  own  in- 
exorable force,  it  unites  in  the  ancestor  any  estate  which  his  heirs 
are  to  take  as  such,  after  a  precedent  estate  given  to  him,  no  mat- 
ter what  the  purpose  of  the  testator  may  have  been;  and  there  is 
a  material  and  controlling  distinction  between  a  devise  of  an  es- 
tate to  a  person  named  and  his  lawful  heirs,  and  a  devise  to  tlie 
lawful  heirs  of  a  person  named.'*' 


'■'  Allen  V.  Craft,  109  Ind.  476,  9  N. 
E.  919,  58  Am.  Rep.  425.  Where  a 
will  gave  a  certain  share  of  the  tes- 
tator's real  estate  to  his  daughter,  "M. 
R.,  and  her  heirs  (exclusively),"  she 
took  a  fee-simple  title  to  the  real  es- 
tate subject  to  be  disposed  of  and  con- 
veyed by  deed  in  which  her  husband 
should  join.  The  word  "heirs"  in  the 
will  is  used  in  its  technical  legal 
sense,  and  vests  a  fee  in  the  first 
taker.  Reddick  v.  Lord,  131  Ind.  336, 
30  N.  E.  1085.  The  rule  in  Shelley's 
Case  is  a  law  of  property  in  this  state, 
but  it  will  not  be  allowed  to  override 
the  manifest  and  clearly  expressed  in- 
tention of  a  testator;  mere  negative 
restraining  words,  however,  will  not 
defeat  its  operation.  Ridgeway  v. 
Lanphear,  99  Ind.  251 ;  Earnhart  v. 
Earnhart,  127  Ind.  397,  26  N.  E.  895, 
22  Am.  St.  652.  When  it  becomes 
manifest  that  the  word  "heirs"  was 
used  as  a  synonymn  for  "children," 
or  in  some  modified  sense,  the  rule  in 
Shelley's  Case  will  not  be  applied  to 


overturn  the  testator's  intention.  Mc- 
Mahan  v.  Newcomer,  82  Ind.  565 ; 
Millett  V.  Ford,  109  Ind.  159,  8  X.  E. 
917;  Conger  v.  Lowe,  124  Ind.  368,  24 
X.  E.  889.  9  L.  R.  A.  165n ;  Jackson  v. 
Jackson,  127  Ind.  346,  26  X.  E.  897. 

*"  Conger  v.  Lowe,  124  Ind.  368,  24 
X.  E.  889,  9  L.  R.  A.  165n.  A  widow 
is  deemed  an  heir  of  her  deceased 
husband  as  to  her  inheritance  of  his 
real  estate  under  the  statute  of  de- 
scents ;  but  when  she  claims  a  share 
in  such  real  estate  as  one  of  several 
persons  designated  as  heirs  in  his  will, 
the  meaning  of  that  word  must  be 
sought  by  ascertaining  the  intention 
of  the  testator,  as  gathered  from  the 
whole  will ;  and  where  a  will,  after 
making  provision  for  the  testator's 
wife  during  her  widowhood,  directed 
that  when  she  should  cease  to  be  his 
widow,  "and  my  youngest  children 
come  of  age,  all  my  real  estate  be  di- 
vided equally  among  all  my  heirs,"  the 
word  heirs  was  construed  as  meaning 
the  children  of  the  testator  and  de- 


§519  CONSTRUCTION    OF    WILLS.  9I9 

§  519.  No  exception  to  the  rule. — The  question  is  not 
whether  it  was  intended  by  the  testator  that  the  rule  should  not 
operate,  for  whether  or  not  it  shall  operate  is  not  within  his  power 
to  say,  but  whether  he  used  the  words  "heirs,"  or  "heirs  of  the 
body,"  as  synonymous  with  the  word  "children,"  or  its  equiva- 
lent. It  is  because  the  limiting  words  are  not  used  in  their  legal 
sense  that  the  courts  do  not  apply  the  rule  in  Shelley's  Case,  for 
where  the  words  are  so  used,  the  rule  must  be  applied. '^^ 

As  is  well  said,  "The  requisite  limitations  to  the  ancestor  and 
his  heirs  being  found,  the  rule  must  be  applied.  It  can  never  be 
a  question  whether  the  rule  shall  be  applied  or  not,  whether  the 
author  of  the  limitations  intended  it  to  be  applied  or  not.  We 
might  as  well  ask  whether  a  testator  intended  to  contravene  the 
rule  against  perpetuities.  It  will  no  more  yield  to  individual  in- 
tention than  any  other  fundamental  law  of  property.  The  rule 
admits  of  no  exceptions. "^- 

The  word  issue  in  a  will  is  regarded  as  prima  facie  a  word 
of  limitation,  and  is  synonymous  to  heir,  or  heirs  of  the  body, 

scendants    of    his    deceased    children,  v.  Mann,  99  Ind.  190,  50  Am.  Rep.  82; 

and    not    as     including    the    widow.  Ridgeway  v.  Lanphear,  99  Ind.  251 ; 

Brown  v.  Harmon,  72i  Ind.  412.  Brumfield    v.    Drook,    101    Ind.    190; 

"Hileman  v.  Bouslaugh,  13  Pa.  St.  Hochstedler  v.   Hochstedler,   108  Ind. 

344.  53  Am.  Dec.  474;  Allen  v.  Craft,  506,    9    N.    E.    467;     Levengood    v. 

109  Ind.  476,  9  N.  E.  919,  58  Am.  Rep.  Hoople,   124   Ind.  27,  24  N.   E.   2)7i ; 

425;   Walker   v.   Vincent,   19   Pa.   St.  Jackson  v.  Jackson,  127  Ind.  346,  26 

369;  Underwood  v.  Robbins,  117  Ind.  N.  E.  897;  Stevens  v.  Flannagan,  131 

308,  20  X.  E.  230;   Conger  v.  Lowe,  Ind.  122,  30  N.  E.  898;  Essick  v.  Ca- 

124  Ind.  368,  24  X.  E.  889,  9  L.  R.  A.  pie,  131  Ind.  207,  30  N.  E.  900.     In  a 

165n.     The  word  "heirs"  has  a  fixed,  will    the    force    of   the   word    "heirs" 

legal  meaning,  and  can  only  be  held  may    be    controlled    by    the    context, 

to  mean  children,  or  to  be  a  word  of  Griffin  v.  Ulen,  139  Ind.  565,  39  X.  E. 

purchase,  when  it  is  clear  that  such  254. 

was  the  intention  of  the  testator.  Mc-  ^'  Hays'  Prin.  for  Expounding  Dis- 

Nutt  V.  McXutt,  116  Ind.  545,  19  X.  positions   of   Real    Estate   96;    Inger- 

E.  115,  2L.  R.  A.  372n;  Tinder  V.  Tin-  soil's  Appeal,  86  Pa.   St.  240;   Doeb- 

der.  131  Ind.  381,  30  X.  E.  1077.    The  ler's  Appeal,  64  Pa.  St.  9;  Shimer  v. 

term  "legal  heirs"  will  be  construed  Mann,  99  Ind.   190,  50  Am.  Rep.  82; 

to  mean  "child  or  children,"  when  it  Conger  v.  Lowe,  124  Ind.  368,  24  X. 

clearly  appears  from  the  will  that  the  E.  889,  9  L.  R.  A.  165n. 
testator  used  it  in  that  sense.     Shimer 


920 


INDIANA    PROBATE    LAW. 


§519 


and  will  be  so  construed  when  used  without  any  explanatory 
words  showing  that  it  was  used  in  a  restricted  sense.'*^ 

The  rule  does  not  apply  where  it  unequivocally  appears  that 
the  persons  who  are  to  take  are  not  to  take  as  heirs  of  the  de- 
visees, nor  will  the  devise  be  construed  to  vest  a  fee,  when  it 
clearly  appears  that  such  was  not  the  intention  of  the  testator/* 

In  applying  the  rule,  confusion,  when  it  exists,  arises  in  ascer- 


''"  Quackenboss  v.  Kingsland,  102  N. 
Y.  128,  6  N.  E.  121,  55  Am.  Rep.  771n; 
Sibley  v.  Perry,  7  Ves.  Jr.  522;  Pow- 
ell V.  Board  of  Domestic  Missions,  49 
Pa.    St.  46;   Robins   v.   Quinliven,   79 
Pa.  St.  333.     The  term  '"heirs  of  the 
body"  means  such  of  the  issue,  or  off- 
spring, as  may  lawfully  inherit.  Waters 
V.  Bishop,  122  Ind.  516,  24  N.  E.  161. 
When    the    term    "heirs"   clearly    ap- 
pears to  be  used  as  descriptive  of  a 
class  who  are  to  take  as  devisees,  the 
fee  will  not  vest  in  the  first  taker,  but 
where  the  word  is  connected  with  the 
name  of  the  first  taker,  it  carries  the 
fee,  unless   it  clearly  appears  that  it 
was  not  used  in  its  ordinary  legal  sig- 
nification.    Shimer  v.   Mann,  99  Ind. 
190,  50  Am.  Rep.  82.     When  the  word 
'"heirs"  is  used  as  a  word  of  hmita- 
tion,  it  is  treated  as  conclusively  ex- 
pressing the  intention  of  the  testator. 
Allen  V.  Craft,  109  Ind.  476,  9  N.  E. 
919,    58    Am.    Rep.    425.     The    word 
"children"  is  a  word  of  purchase  and 
not  of  limitation,  and  when  used  with- 
out words  adding  to  its  force,  the  first 
taker  of  the  estate  does  not  take  the 
fee.     Ridgeway  v.  Lanphear,  99  Ind. 
251. 

'*  Conger  v.  Lowe,  124  Ind.  368,  24 
N.  E.  889,  9  L.  R.  A.  165n ;  Millett  v. 
Ford,  109  Ind.  159,  8  N.  E.  917;  Earn- 
hart  v.  Earnhart,  127  Ind.  397,  26  N. 
E.    895,    22    Am.    St.    652;    Fountain 


County  Coal  &c.  Co.  v.  Beckleheimer, 
102  Ind.  76,  1  N.  E.  202,  52  Am.  Rep. 
645;   Daniel  v.   Whartenby,    17   Wall. 
(U.  S.)  639,  21  L.  ed.  661;  Belslay  v. 
Engel,  107  111.  182.    The  word  "issue" 
is  ordinarily  a  word  of  limitation  of  the 
same  force  as  the  word  ""heirs."  Allen 
V.  Craft,  109  Ind.  476,  9  X.  E.  919,  58 
Am.  Rep.  425.     A  testator,  after  de- 
vising a  portion  of  his  estate  to  his 
children  '"as  tenants  in  common,"  but 
that  the  share  of  one  daughter  should 
be  less  than  the  shares  of  the  other 
children,     provided     that     her     share 
■"shall  descend  to  her  and  her  children 
after  her  free  from  and  beyond  any 
control   of   her  husband,    *   *    *    and 
unincumbered  from  any  of  the  debts 
and   liabilities   of   his   forever.     Held, 
that  she  took  in  fee-simple,  and  not  a 
mere  life-estate.     Lennen  v.  Craig,  95 
Ind.  167.    A  devise  of  real  estate  by 
a  testator  to  his  son  '"during  his  nat- 
ural life,  and  at  his  death  to  his  chil- 
dren, if  he  have  any,  and  if  he  have 
no  children,  or  if  there  be  no  heirs  of 
his  body,  then  the  real  estate  to  his 
other  heirs  of  his  own  blood  equally; 
and  if  he  die  leaving  a  wife,  his  said 
wife  to  have  a  life-estate  in  said  real 
property,   sdid  estate  to   terminate  at 
her  death,"  vested  in  the  son,  unmar- 
ried   and    childless    at    the    testator's 
death,  only  a  life-estate.     Ridgeway  v. 
Lanphear,  99  Ind.  251. 


§519 


CONSTRUCTION    OF    WILLS. 


921 


taining  from  the  will  what  was  the  intention  of  the  testator.  This 
intention  when  ascertained  must  control."'' 

The  rule  that  the  word  "heirs,"  when  found  in  a  will,  will  be 
construed  as  a  word  of  limitation,  and  not  of  purchase,  unless 
there  be  explanatory  words  clearly  showing  that  it  was  used  in 
a  popular  or  restricted  sense,  admits  of  no  exception,  and  when 
the  word  is  used  as  a  word  of  limitation,  it  is  wholly  immaterial 
that  the  testator's  intention  may  be  frustrated  by  the  application 
of  the  rule.^^ 


"Perkins  v.  McConnell,  136  Ind. 
384,  36  N.  E.  121;  Conger  v.  Lowe, 
124  Ind.  368,  24  N.  E.  889;  9  L.  R.  A. 
165n.  Superadded  words  which  mere- 
ly describe  or  specify  the  incidents  of 
the  estate  created  by  such  a  word  of 
limitation  as  the  word  "heirs"  do  not 
cut  down  the  interest  of  the  devisee. 
Allen  V.  Craft,  109  Ind.  476,  9  N.  E. 
919,  58  Am.  Rep.  425. 

'"'■Conger  v.  Lowe,  124  Ind.  368,  24 
N.  E.  889,  9  L.  R.  A.  165n;  Allen  v. 
Craft,  109  Ind.  476,  9  N.  E.  919,  58 
Am.  Rep.  425;  Reddick  v.  Lord,  131 
Ind.  336,  30  N.  E.  1085.  A  testator 
devised  land  to  his  son  during  his  nat- 
ural life,  declaring  that  upon  the 
death  of  his  son,  or  upon  his  refusal 
to  occupy  or  Hve  on  the  farm,  "I  will, 
devise  and  bequeath  the  same  to  the 
said  Samuel  M.  Conger's  heirs." 
Samuel  M.  Conger  took  possession  of 
the  farm,  but  afterward  conveyed  it 
by  warranty  deed,  and  ceased  to  live 
upon  it.  This  suit  is  by  the  children 
of  Samuel  M.  Conger,  who  is  still  in 
life,  their  claim  being  that  under  the 
will  of  the  grandfather  the  title  vested 
in  them,  and  that  they  became  entitled 
to  the  possession,  when  their  father 
abandoned  them  and  conveyed  away 
the  land.  Held,  that  the  word  "heirs" 
is  to  be  construed  to  mean  "children," 
and  that  upon  the  death  of  the  testa- 


tor the  devisee  took  a  life-estate  in 
the  land  defeasible  upon  condition 
that  he  refuse  to  live  upon  or  occupy 
the  estate,  and  that  the  will  created  a 
vested  remainder  over  in  fee  to  the 
testator's  children,  to  take  effect  in 
possession  upon  the  termination  of 
the  estate  of  the  father.  Held,  also, 
that  immediately  upon  the  conveyance 
by  their  father,  the  children  were  en- 
titled to  possession.  Conger  v.  Lowe, 
124  Ind.  368,  24  N.  E.  889,  9  L.  R.  A. 
165n.  A  testator  bequeathed  to  his 
daughter  a  sum  of  money,  directing 
that  it  be  put  at  interest  and  the  prin- 
cipal paid  to  her  when  she  became 
twenty-one  years  of  age,  or  the  day  of 
her  marriage;  '"but  if  she  should  die 
without  legal  heirs,  or  before  she 
reaches  twenty-one  years,  her  share 
of  my  estate  shall  be  given  by  my  ex- 
ecutor to  my  mother,  brothers  and 
sisters,  or  their  representatives,  share 
and  share  alike."  Held,  that  the  term 
"legal  heirs"  was  used  in  its  limited 
sense  of  "child  or  children,"  and  upon 
the  death  of  the  legatee,  an  infant  and 
unmarried,  after  the  death  of  the  tes- 
tator's mother,  brothers  and  sisters, 
the  children  of  the  latter  are  entitled 
to  the  estate  to  the  exclusion  of  the 
legatee's  brother  and  sister  of  the 
half-blood.  Underwood  v.  Robbins, 
117  Ind.  308,  20  X.  E.  230. 


922  INDIANA    PROBATE    LAW.  §  52O 

The  courts  in  this  state,  while  not  favorable  to  the  rule,  have 
declared  it  "too  firmly  established  to  be  shaken  by  the  courts," 
and  that  it  would  be  enforced,  "not  because  it  is  just  or  whole- 
some, but  because  it  is  law;"  and  that  "its  operation  more  fre- 
quently defeats  the  just  and  undoubted  intention  of  grantors  and 
testators  than  any  other  effect  it  has."  Again,  "The  rule  had  its 
origin  in  the  principles  and  policy  of  feudal  tenures,  the  policy 
being  to  discourage  alienation  and  to  favor  the  descent  of  land 
in  the  line  of  inheritance.  This  policy  does  not  seem  in  harmony 
with  the  spirit  of  our  institutions,  and  accordingly  the  rule  in 
Shelley's  Case  has  been  abrogated  by  statute  in  many  of  the 
states.    It  has,  however,  as  yet  remained  the  law  in  Indiana."^^ 

§  520.  The  estate  liable  for  debts. — Whether  a  person  dies 
testate  or  intestate,  the  estate  he  leaves  is  liable  for  his  debts  and 
must  first  be  applied  to  their  payment.  While  the  law  permits  a 
testator  to  make  almost  any  disposition  of  his  estate  which  seems 
to  him  proper,  it  provides  that  he  shall,  in  no  way,  so  dispose  of 
his  estate  by  will  as  to  affect  its  liability  for  the  payment  of  his 
debts." 

And  while,  as  has  been  shown,  the  personal  property  is  the 
primary  fund  out  of  which  debts  shall  be  paid,  yet  the  entire  es- 
tate, both  real  and  personal,  is  held  liable  for  their  payment.  A 
testator,  however,  may  charge  any  particular  portion  of  his  estate 
with  the  payment  of  his  debts  to  the  exoneration  of  the  rest.  But 
when  it  becomes  necessary  to  resort  to  his  real  estate  for  their 
payment,  that  portion  of  it,  if  any,  which  is  undevised  must  be 
first  taken.  The  statute  says:  "Whenever  any  part  of  the  real 
estate  of  a  testator  is  left  undevised  by  his  will,  and  his  personal 
estate  shall  be  insufficient  for  the  payment  of  his  debts,  the  un- 
devised real  estate  shall  be  first  chargeable  with  debts,  in  exonera- 
tion, as  far  as  it  will  go,  of  the  real  estate  that  is  devised,  unless 
it  shall  appear  from  the  will  that  a  different  disposition  of  the  as- 
sets for  the  payment  of  his  debts  was  made  by  the  testator,  when 

'"Mcllhinny  v.  Mcllhinny,  137  Ind.     L.    R.   A.   489;    Waters  v.   Lyon,    141 
411,  Zl  N.  E.  147,  45  Am.  St.  186,  24    Ind.  170,  40  N.  E.  662. 

-     '•*  Burns'  R.  S.  1908,  §  3126. 


;20 


CONSTRUCTION    OF    WILLS.  923 


they  shall,  for  that  purpose,  be  disposed  of  in  conformity  with  the 
provisions  of  the  will.""® 

"And  the  naming  of  an  executor  in  a  will  shall  not  operate  as 
a  discharge  of  any  just  claim  the  testator  had  against  such  execu- 
tor, but  the  same  shall  be  settled  according  to  law.'""' 

"And  the  discharge  of  any  demand  by  the  testator  against  any 
person  shall  be  construed  only  as  a  specific  bequest  of  such  de- 
mand, and  the  amount  thereof  shall  be  included  in  the  inventory 
of  the  effects  of  the  deceased,  and  if  necessary  be  applied  to  the 
payment  of  his  debts;  and,  if  not  necessary  for  that  purpose, 
shall  be  paid  in  the  same  manner  as  other  specific  legacies.'"' 

The  devisee  of  land,  like  the  heir,  takes  such  land  subject  to  its 
liability  for  the  payment  of  the  testators  debts,  and  any  pur- 
chaser from  a  devisee,  pending  the  settlement  of  the  estate  holds 
the  lands  subject  to  the  same  liability.''  And  the  widow  of  a  tes- 
tator who  elects  to  take  under  her  husband's  will  instead  of  the 
law,  takes  the  property  devised  or  bequeathed  to  her  subject  to 
sale,  if  necessary,  for  the  payment  of  his  debts.'^ 

There  is  a  statute  though,  which  provides :  "When  any  estate, 
real  or  personal,  that  is  devised,  shall  be  taken,  in  whole  or  in 
part,  from  the  devisee  for  the  payment  of  the  debts  of  the  tes- 
tator, all  the  other  devisees  shall  contribute  their  respective  por- 
tions of  the  loss  to  the  person  from  whom  the  estate  is  taken,  so 
as  to  make  the  loss  fall  equally  on  such  devisees  according  to  the 
estimated  value  of  the  property  received  by  each  of  them,  unless 
the  testator,  in  his  will,  in  making  a  specific  devise,  shall  have 
virtuallv  exempted  any  devisee  from  his  liability  for  the  pay- 
ment of  the  debts  with  the  others,  or  shall  have,  by  any  provision 
in  his  will,  required  any  appropriation  of  his  estate,  or  any  part 

™  Burns'  R.  S.  1908,  §  3125.  election  of  either  paying  the  debts  and 

«"  Burns'  R.  S.  1908,  §  3128.  charges  against  her  husband's  estate 

«  Burns'  R  S  1908,  §  3130.  or  of  assuming  to  pay  such  debts  and 

-Moncrief    v.     Moncrief,    n    Ind.  charges,    and    of    thus    releasing    the 

587  •  Weakley  v.  Conradt,  56  Ind.  430.  property   devised   and  bequeathed   to 

=^kayser  v.  Hodopp,  116  Ind.  428,  19  her,  or  permitting  the  property  to  be 

N   E  297.  In  this  case  the  court  says :  sold  and  the  proceeds  to  be  applied  in 

"After  Mrs.   Hodopp  elected  to  take  payment  of  those  debts  and  charges. 

under  the  will,  she  had  the   further 


924  INDIANA    PROBATE    LAW.  §  52O 

of  it,  for  the  payment  of  his  debts,  different  from  that  prescribed 
in  this  section,  in  which  case  the  estate  shall  be  applied  in  con- 
formity with  the  provisions  of  the  will/'* 

Unless  such  liability  is  imposed  as  a  condition  of  the  devise,  a 
devisee  does  not  become  personally  liable  for  the  testator's  debts, 
even  where  such  debts  are  made  a  charge  against  the  land  de- 
vised/'' 

The  statute  provides  that :  "Whenever  any  person  shall  have 
devised  his  estate,  or  any  part  thereof,  and  any  of  his  real  estate, 
subject  to  a  mortgage  executed  by  such  testator,  shall  descend  to 
an  heir  or  pass  to  a  devisee,  and  no  specific  direction  is  given  in 
the  will  for  the  payment  of  such  mortgage,  the  same  shall  be  dis- 
charged as  follows:  ist,  if  such  testator  shall  have  charged  any 
particular  part  of  his  estate,  real  or  personal,  with  the  payment  of 
his  debts,  such  mortgage  shall  be  considered  a  part  of  such  debts; 
2d,  if  the  will  contain  no  direction  as  to  what  part  of  his  estate 
shall  be  taken  for  the  payment  of  his  debts,  and  any  part  of  his 
personal  estate  shall  be  unbequeathed  or  undisposed  of  by  his 
will,  such  mortgage  shall  be  included  among  his  debts,  to  be  dis- 
charged out  of  such  estate  unbequeathed  or  undisposed  of.""® 

If  a  will  creates  a  charge  upon  lands  and  the  will  is  duly  proved 
and  recorded,  it  is  sufficient  notice  of  such  charge  to  all  subse- 
quent purchasers  of  the  land."     No  particular  form  of  words  is 

"Burns'  R.  S.  1908,  §  3124.  a  charge  upon  devised  lands,  the  de- 

**  Hancock  v.  Fleming,  103  Ind.  533,  visees  by  accepting  the  devise  do  not 

3  N.  E.  254.    When  lands  are  devised  become    personally    liable     for    such 

to  one  who,  by  the  will,  is  directed  to  debts.     Copeland  v.  Copeland  89  Ind. 

pay  a  legacy,  the  legacy  is  a  charge  29;  Hayes  v.  Sykes,  120  Ind.  180,  21 

upon  the  lands  devised,  and  when  pay-  N.  E.  1080.     Devisees  of  land  are  not 

rnent  of  the  legacy  is  made  a  condi-  liable    to     an     action     for    a    legacy 

tion    of    the    devise,    its    acceptance  charged  thereon  until  they  have  taken 

creates  also  a  personal  liability  to  the  possession,  the  legacy  not  being  due 

legatee  which  may  be  enforced  with-  until  then.     Wilson  v.  Moore,  86  Ind. 

out  resorting  to  the  land,  the  lien  still  244. 

remaining   as    a    security.      Porter   v.  *'*  Burns'  R.  S.  1908,  §  3129. 

Jackson,  95  Ind.  210,  48  Am.  Rep.  704.  ""  Wilson    v.    Piper,    11    Ind.    437 ; 

If  the  debts  of  a  testator  are  made  Nash  v.  Taylor,  83  Ind.  347. 


521 


CONSTRUCTION   OF    WILLS. 


925 


necessary  to  create  a  charge  against  land,  in  fact  the  rule  is  well 
established  a  charge  may  be  created  by  implication.^^ 

§  521.  When  legacies  a  charge. — The  rule  is  well  settled 
that  a  devisee  of  real  estate  who  has  accepted  the  estate  devised  is 
personally  liable  for  the  payment  of  the  legacies  given  by  the  will, 
and  which  are  made  a  specific  charge  upon  such  real  estate;  and 
where  the  personal  estate  is  insufficient  to  discharge  such  legacies, 
they  become  a  lien  upon  devised  real  estate  of  the  testator.  The 
personal  liability  of  the  testator  does  not  divest  the  real  estate  of 
such  lien  where,  by  the  terms  of  the  will,  such  real  estate  is  bound 
for  the  payment  of  such  legacies.^" 

In  Willard's  Equity,  page  489,  the  law  is  thus  stated :  "The 
charge  of  a  legacy  upon  real  estate,  in  aid  or  in  exoneration  of 
the  personalty,  may  be,  and  frequently  is,  created  by  implication 
merely.     If  the  testator  gives  a  legacy,  without  specifying  who 


''Xash  V.  Taylor,  83  Ind.  347;  Da- 
vidson V.  Coon,  125  Ind.  497,  25  N.  E. 
601,  9  L.  R.  A.  584n.  In  determining 
whether  it  was  the  intention  of  the 
testator  to  charge  legacies  upon  land, 
parol  evidence  is  competent  to  prove 
the  situation  and  condition  of  the  tes- 
tator and  his  property  at  the  time  the 
will  was  made.  Black  v.  Richards,  95 
Ind.  184;  Pocock  v.  Redinger,  108  Ind. 
573,  9  N.  E.  473,  58  Am.  Rep.  71n; 
Duncan  v.  Wallace,  114  Ind.  169,  16 
N.  E.  137.  As  the  personal  estate  is 
made  by  law,  the  primary  fund  out  of 
which  legacies  are  to  paid,  it  will  be 
held,  in  the  absence  of  countervailing 
facts,  that  the  testator  intended  that 
the  personal  estate  only  should  be  used 
to  pay  them.  Duncan  v.  Wallace,  114 
Ind.  169,  16  N.  E.  137. 

°"Lindsey  v.  Lindsey,  45  Ind.  552; 
Burch  V.  Burch,  52  Ind.  136;  Watt  v. 
Pittman,  125  Ind.  168,  25  N.  E.  191; 
Lofton  v.  Moore,  83  Ind.  112.  It  is 
firmly  established  that  a  charge  upon 
lands  may  be  imolied  *and  requires  no 


particular  form  of  words.  Nash  v. 
Taylor,  83  Ind.  347.  A  will  contained 
this  provision:  "I  give  to  my  son, 
Joseph  Coon,  the  sum  of  eight  hun- 
dred dollars  in  money,  to  be  made  out 
of  my  estate,  and  I  also  direct  that 
my  son  Joshua  shall  have  three  hun- 
dred dollars,  also  to  be  made  out  of 
my  estate  after  the  death  or  marriage 
of  my  wife;  when  the  above  amounts 
of  money  shall  have  been  paid  I  direct 
that  the  remainder  of  my  whole  es- 
tate shall  be  equally  divided  among  my 
heirs."  J.  C.'s  legacy  remains  unpaid. 
Held,  that  as  the  will  does  not  specifi- 
cally devise  the  land,  but  does,  by  its 
terms,  bequeath  a  legacy  to  J.  C,  and 
make  it  a  charge  upon  the  land,  it  was 
not  necessary  in  order  to  have  the  lien 
of  the  charge  established  that  the 
complaint  should  allege  that  the  testa- 
tor had  not  sufficient  personal  estate 
to  satisfy  the  legacy  at  the  time  he 
executed  the  will.  Davidson  v.  Coon, 
125  Ind.  497,  25  N.  E.  601,  9  L.  R.  A. 
58-1" 


926 


IXDIAN'A    PROHATE    LAW 


&  .■) 


_'I 


shall  pay  it,  or  out  of  what  fund  it  shall  be  paid,  the  legal  pre- 
sumption is  that  he  intended  it  should  be  paid  out  of  his  personal 
estate  only;  and  if  that  is  not  sufticicnt  the  legacy  fails.  So,  if  he 
directs  his  executors  to  pay  a  legacy,  without  giving  to  them  any 
other  fund  than  the  personal  estate  out  of  which  they  can  pay  it. 
But  where  the  real  estate  is  devised  to  the  person  who,  by  the 
will,  is  directed  to  pay  the  legacy,  it  has  frequently  been  decided 
that  such  legacy  is  an  equitable  charge  upon  the  real  estate  so  de- 
vised, although  the  devisee  is  also  the  executor,  or  is  the  residuary 
legatee  of  the  personal  estate;  unless  there  is  something  in  the 
will  itself  to  indicate  a  contrary  intention  on  the  part  of  the 
testator."'"  And  in  i  Story's  Equity,  602:  "If  there  be  a  gen- 
eral gift  of  legacies  in  a  will,  followed  by  *a  gift  of  the  residue,' 
or  'rest,'  or  'remainder,'  and  especially  where  all  these  terms  are 
used  with  reference  both  to  real  and  j)ersonal  estate,  the  legacies 
will  be  regarded  as  a  charge  upon  the  realty.  And  if  the  residu- 
ary devisee  mortgage  the  real  estate  the  mortgagee  will  hold  sub- 
ject to  the  legacies."'^ 


'"  Where  the  will  gives  the  widow  a 
life  estate  in  the  land  and  in  the  per- 
sonal property  thereon,  it  does  not 
show  a  disposition  of  all  the  personal 
property,  and,  to  charge  the  land  with 
the  payment  of  legacies,  the  want  of 
suliicicnt  personal  property  to  pay 
them,  at  the  time  the  will  was  exe- 
cuted, must  be  shown.  Duncan  v. 
Wallace,  114  Ind.  169,  16  N.  E.  137. 
If  lands  upon  which  a  legacy  is  a  lien 
are  sold  upon  proceedings  in  partition 
as  being  unencumbered,  tlie  purchaser 
may,  by  suit,  require  the  legatee  to  re- 
sort to  the  proceeds  of  the  land  while 
the  same  is  in  court,  for  the  satisfac- 
tion of  the  legacy.  Porter  v.  Jackson, 
95  Ind.  210,  48  Am.  Rep.  704.  If  a 
will  creates  a  charge  upon  lands,  and 
it  is  duly  proved  and  recorded,  all  sub- 
sequent purchasers  ot  the  land  must 
take  notice  of  such  charge.  Wilson 
V.  Piper,  n  Ind.  437;  Xash  v.  Taylor, 


83  Ind.  347.  The  rule  is  well  settled 
that,  when  real  estate  is  devised  to  the 
person  who,  by  the  will,  is  directed  to 
pay  a  legacy,  such  legacy  is  an  equita- 
ble lien  upon  the  real  estate  so  de- 
vised. Castor  V.  Jones,  86  Ind.  289; 
Manifold  v.  Jones,  117  Ind.  212,  20  X. 
E.  124;  Watt  v.  Pittman,  125  Ind.  168, 
25  X.  E.  191;  Davidson  v.  Coon,  125 
Ind.  497,  25  X.  E.  601,  9  L.  R.  A.  584n. 
.\  legatee  whose  legacy  is  a  charge 
upon  land  may  maintain  an  action  to 
establish  the  lien  after  the  estate  has 
been  finally  settled.  Gould  v.  Steyer, 
75  Ind.  50;  Reynolds  v.  Bond,  83  Ind. 
36. 

'  Where  lands  were  devised  to  the 
sons  of  the  testator,  and  it  was  pro- 
vided that  after  the  arrival  of  the 
sons  at  the  age  of  twenty-one  years 
the  widow  of  the  testator  should  have 
a  living  off  of  the  land  until  her  death 
or  marriage,  it  was  held  that  such  liv- 


;2I 


CONSTRUCTION    OF    WILLS. 


927 


In  the  leading  case  of  Harris  v.  Fly,  7  Paige  (N.  Y.)  421,  the 
court  says:  "Upon  a  full  examination  of  authorities,  therefore,  I 
am  satisfied  that  where  real  estate  is  devised  upon  condition  to  pay 
a  legacy,  or  with  a  direction  to  the  devisees  to  pay  the  legacy  in 
respect  to  the  estate  so  devised  to  him,  and  because  that  real 
estate  has  been  thus  devised,  such  real  estate  is  in  equity  charge- 
able with  the  payment  of  the  legacy,  unless  there  is  something  in 
the  will  to  rebut  the  legal  presumption,  or  from  which  it  can  be 
inferred  that  the  testator  intended  to  exempt  the  estate  devised 
from  that  charge."'" 


ing  was  made  a  charge  upon  the  rents 
and  profits  of  such  lands,  but  not 
against  the  devisees  personally,  and 
that  a  partition  of  the  lands,  or  a  sale 
thereof  under  a  clause  in  the  will, 
would  not  divest  such  widow  of  her 
rights.  Commons  v.  Commons,  115 
Ind.  162,  16  N.  E.  820,  17  N.  E.  271. 
The  substance  of  a  writing  in  the  form 
of  a  will  was,  that  the  testator  gave 
to  his  son-in-law  certain  personal 
property  and  a  farm,  to  be  held  dur- 
ing the  life  of  the  testator  and  wife, 
and,  after  tlicir  deaths,  the  devisee  to 
pay  all  taxes,  take  care  of  the  testa- 
tor and  wife  while  they  lived,  pay 
their  funeral  expenses,  take  care  of  a 
daughter  while  she  remained  unmar- 
ried, and  "pay  me  two  hundred  and 
fifty  dollars  by  the  first  of  January  in 
each  year,  *  *  *  during  the  natural 
lifetime  of  myself  and  wife,"  with  in- 
terest after  maturity,  and  to  live  on 
the  farm  with  the  testator  while  the 
latter  and  his  wife  lived;  and  the  de- 
visee accepted  the  provisions  of  the 
will,  taking  possession,  &c.  Held,  that 
the  instrument,  though  having  some 
elements  of  a  contract,  yet  was  a  will, 
inasmuch  as  it  was  a  testamentary  dis- 
position of  property.  Held,  that, 
upon  the  death  of  the  testator,  his 
widow  became  entitled  to  an  annuity 
of    two    hundred    and    fifty    dollars, 


which  was  a  charge  upon  the  land  de- 
vised.    Castor  v.  Jones,  86  Ind.  289. 

'-Cann  v.  Fidler,  62  Ind.  116;  see 
also  §  347,  ante;  Wilson  v.  Piper,  11 
Ind.  437;  Wilson  v.  Moore,  86  Ind. 
244;  Nash  v.  Taylor,  83  Ind.  347;  Por- 
ter v.  Jackson,  95  Ind.  210,  48  Am. 
Rep.  704;  Dodge  v.  Manning,  11 
Paige  (X.  Y.)  334;  Brown  v.  Knapp, 
79  N.  Y.  136;  Fuller  v.  McEwen,  17 
Ohio  St.  288;  Jennings  v.  Sturdevant, 
140  Ind.  641,  40  N.  E.  61.  Where 
property  is  devised  to  a  wife  "to  use 
and  dispose  of  as  she  may  think  best 
for  herself  and  my  children,"  she 
takes  it  charged  with  an  implied  trust 
for  the  use  of  herself  and  the  testa- 
tor's children ;  and  the  word  "chil- 
dren" will  be  held  to  mean  the  testa- 
tor's illegitimate  children  by  the  dev- 
isee, to  the  exclusion  of  his  legiti- 
mate children  by  a  former  wife,  when 
the  circumstances  show  such  to  have 
been  his  intention.  Elliott  v.  Elliott, 
117  Ind.  380,  20  N.  E.  264,  10  Am.  St. 
54.  Where  a  testator  made  various 
bequests  of  money,  and  then,  by  the 
terms  of  the  will,  gave  to  his  son  and 
daughter  "all  the  balance  or  residue 
of  his  estate,  real  and  personal,"  and 
after  the  payment  of  the  testator's 
debts  and  the  costs  of  administration 
there  was  not  sufficient  personal  estate 
left  to  pay  the  bequests,  they  became 


928 


INDIANA    PROBATE    LAW. 


§522 


Such  liability,  once  accepted,  extends  to  the  whole  legacy, 
although  it  may  exceed  in  amount  the  entire  value  of  the  land 
devised.  The  personal  liability  against  the  devisee  may  be  en- 
forced, or  resort  be  had  to  the  land,  or  both  if  necessary.''' 

.^  522.  Rights  of  husband  and  wife. — The  law  gives  to  a 
husband  or  wife,  upon  the  death  of  one,  certain  fixed  rights  in  the 
estate  of  the  other,  and  every  rule  of  descent  and  distribution  is 
made  subservient  to  such  rights,  and  neither  husband  nor  wife 
can  deprive  the  other  of  the  interest  in  his  or  her  estate  thus 
given  by  the  law,  without  the  consent  of  the  other.  The  power  to 
dispose  of  all  property  by  will  is  subject  to  this  rule  of  law,  and  if 
a  testator  is  married  such  testator  cannot,  by  will,  make  any  dis- 
position of  his  or  her  estate,  which  will  deprive  the  surviving 
spouse  of  the  interest  the  law  gives  him  or  her  to  such  estate. 
Such  spouse,  however,  may  be  put  to  an  election.*' 


a  charge  on  the  real  estate,  as  it  was 
not  specifically  devised,  but  merely  in- 
cluded in  tile  residuary  clause.  Amer- 
ican Cannei  Coal  Co.  v.  Clemens,  132 
Ind.  163,  31  N.  E.  786.  Where  one 
devisee,  who  holds  enforceable  claims 
against  the  testator's  estate,  enters 
into  a  contract  with  another  devisee, 
upon  whose  lands  the  claims  are  a 
charge,  in  pursuance  of  which  the  lat- 
ter pays  to  the  former  full  considera- 
tion for  the  claims,  the  settlement  is 
valid,  in  the  absence  of  fraud  or  mis- 
take, and  the  claims  involved  will  be 
deemed  extinguished.  Hayes  v.  Sykes, 
120  Ind.  180,  21  N.  E.  1080.  Where  a 
testator  devises  land  charged  with  the 
payment  by  the  devisee  of  a  sum  of 
money  to  his  estate,  within  a  certain 
time,  and  the  devisee,  as  executor  of 
the  will,  charges  himself  with  the  sum 
to  be  paid  by  him,  the  charge  on  the 
land  will  be  regarded  as  paid  and  ex- 
tinguished as  to  the  subsequent  good- 
faith  purchasers.  Manifold  v.  Jones, 
117  Ind.  212.  20  X.  E.  124. 


"Porter  v.  Jackson,  95  Ind.  210,  48 
-Am.  Rep.  704;  Brown  v.  Knapp,  79  N. 
V.  136;  Clyde  v.  Simpson,  4  Ohio  St. 
445;  Gitnbcl  v.  Stolte,  59  Ind.  446; 
Milligan  v.  Poole,  35  Ind.  64.  For 
further  on  the  subject  of  legacies  and 
tlieir  payment,  see  ante,  §  347. 

•*  Burns'  R.  S.  1908,  §  3043  et.  seq. 
.\  widow,  to  whom  a  life-estate  is  de- 
vised in  lieu  of  her  interest  in  her 
husband's  land,  manifests  her  inten- 
tion to  take  under  the  will  by  claiming 
such  life-estate  as  exempt  from  exe- 
cution. Barkley  v.  Mahon,  95  Ind. 
101.  A  widow  cannot  accept  the  pro- 
visions of  a  will  and  also  claim  under 
the  statute  unless  it  clearly  appears 
that  the  testator  so  intended.  Rags- 
dale  V.  Parrish,  74  Ind.  191;  ©'Har- 
row v.  Whitney,  85  Ind.  140;  Wilson 
V.  Moore,  86  Ind.  244.  Where  a  tes- 
tator by  his  will  disposes  of  all  his 
property  and  makes  provision  for  his 
widow,  which  she  accepts,  her  right  to 
the  five  hundred  dollars  allowed  her 
by  law  is  waived.     Wright  v.  Jones, 


§522 


CONSTRUCTION   OF   WILLS. 


929 


The  rule  is  that  where  a  provision  is  made  in  the  will  of  a 
testator  for  a  surviving  husband  or  wife,  if  it  does  not  clearly 
appear  from  such  will  that  the  provision  so  made  is  to  be  in 
addition  to  the  interest  in  the  testator's  estate  given  by  the  law  to 
such  surviving  husband  or  wife ;  or  if  it  appears  from  the  will 
that  the  provision  made  therein  is  to  be  in  lieu  of  the  interest 
given  by  the  statute,  such  survivor  must  elect  whether  to  take 
under  the  will  or  under  the  statute." 

The  act  of  election  is  an  affirmative  one,  and  must  be  per- 
formed in  compliance  with  the  provisions  of  the  statute  in  refer- 


105  Ind.  17,  4  X.  E.  281;  Hurley  v. 
Mclver,  119  Ind.  53,  21  N.  E.  325; 
Shipman  v.  Keys,  127  Ind.  353,  26  N. 
E.  896.  A  testator,  by  one  item  of  his 
will,  gave  certain  real  estate  to  his 
wife,  remainder  in  fee  to  his  children, 
and  also  certain  personal  property; 
and  by  the  next  item  he  gave  the  res- 
idue of  his  real  and  personal  estate  to 
his  children,  "after  my  beloved  wife 
has  taken  her  portion  according  as  the 
law  provides."  Held,  that  the  provi- 
sion made  in  the  first  item  was  plainly 
in  addition  to  the  right  in  his  estate 
given  by  law  to  the  widow,  and,  by 
virtue  of  the  statute,  she  was  entitled 
to  both.  Burkhalter  v.  Burkhalter,  88 
Ind.  368;  Like  v.  Cooper,  132  Ind.  391, 
31  N.  E.  1118. 

"  Like  V.  Cooper,  132  Ind.  391,  31  N. 
E.  1118;.  Clark  v.  Clark,  132  Ind.  25, 
31  N.  E.  461;  Young  v.  Pickens,  49 
Ind.  23;  Ragsdale  v.  Parrish,  74  Ind. 
191.  Where  a  testator,  by  his  will, 
makes  a  specific  provision  for  his 
widow,  but  does  not  declare  that  such 
provision  is  to  be  in  lieu  of  that  made 
by  the  law,  the  widow's  right  to  the 
five  hundred  dollars  allowed  her  by 
law  is  not  waived  by  her  acceptance  of 
the  provisions  of  the  will,  unless  the 
assertion  by  the  widow  of  the  right  to 
take  both  under  the  law  and  under  the 


will  would  defeat  the  purpose  of  the 
testator  as  shown  by  the  disposition 
which  he  has  made  of  the  residue  of 
his  property.  Shipman  v.  Keys,  127 
Ind.  353,  26  N.  E.  896.  Where  a 
widow  refuses  to  accept  the  provision 
made  for  her  by  her  husband's  will 
and  elects  to  take  under  the  law,  she 
takes  one-third  of  his  land  in  fee,  and 
if  he  leaves  no  child  and  no  father  or 
mother,  she  also  takes  any  portion  of 
his  estate  left  undisposed  of  by  the 
will,  and  no  more.  Morris  v.  Morris, 
119  Ind.  341,  21  N.  E.  918;  Collins  v. 
Collins,  126  Ind.  559,  25  N.  E.  704,  28 
X.  E.  190.  Where  the  elements  of 
estoppel  are  absent,  and  where  it  is 
evident  that  the  election  of  the  widow 
is  not  the  result  of  a  reasonable  un- 
derstanding of  the  effect  of  the  act, 
and  where  the  act  is  sought  to  be  re- 
voked within  the  statutory  period  for 
exercise  of  the  election  to  take  under 
the  law,  such  revocation  should  be 
permitted.  Garn  v.  Gam,  135  Ind. 
687,  35  X.  E.  394.  An  allegation  that 
a  widow  has  not  elected  to  take  under 
the  will  is  not  equivalent  to  an  allega- 
tion that  she  has  elected  not  to  take 
under  the  will,  and  has  taken  under 
the  law.  Wilson  v.  Moore,  86  Ind. 
244;  Hopkins  v.  Quinn,  93  Ind.  223. 


59 — Pro.  L.wv. 


930 


INDIANA    PROBATE    LAW. 


^5^-2 


ence  thereto;'"  and  if  not  exercised  within  the  time  and  in  the 
manner  specified  in  the  statute,  the  party  entitled  to  exercise  such 
right  will  be  presumed  to  have  accepted  the  provisions  made  for 
him  or  her  by  the  will." 

The  surviving  wife,  if  she  takes  under  the  law,  takes  such  in- 
terest as  the  statute  gives  her  free  from  liability  for  her  husband's 
debts,  but  if  she  elects  to  take  in  lieu  of  such  interest,  a  provision 
made  for  her  by  such  husband's  will,  she  takes  such  provision 
subject  to  the  payment  of  his  debts. ^® 


'■  Bower  v.  Bowen,  139  Ind.  31,  38 
X.  E.  326.  Where  a  testator  died  leav- 
ing a  widow  and  six  children,  three 
sons  and  three  daughters,  devising 
forty  acres  of  land  to  each  of  the 
sons,  and  his  remaining  land,  seventy- 
seven  62-100  acres,  to  his  widow  for 
life,  and  to  his  daughters  after  her 
death,  and  such  widow  elected  to  take 
under  the  law,  she  thereby  became  en- 
titled to  one-third  of  such  land  in  fee- 
simple,  and  two-thirds  of  the  seventy- 
seven  62-100  acres,  during  the  life  of 
said  widow,  descended  to  the  children 
of  such  testator.  The  widow's  elec- 
tion to  take  under  the  law  was  a  re- 
jection of  a  life-estate,  under  the  will, 
and  consequently  no  disposition  was 
made  of  such  estate,  and  hence  the 
same  descended  to  the  heirs  of  said 
testator.  Hauk  v.  McComas,  98  Ind. 
460. 

^  Fosher  v.  Guilliams,  120  Ind.  172, 
22  N.  E.  118;  Hurley  v.  Mclver.  119 
Ind.  53,  21  N.  E.  325 ;  Clark  v.  Clark, 
132  Ind.  25.  31  N.  E.  461 ;  Bower  v. 
Bowen,  139  Ind.  31,  38  N.  R  326 ;  Huff- 
man v.  Copeland,  139  Ind.  221,  38  X. 
E.  861.  The  change  in  the  rule  of  elec- 
tion— requiring  the  widow  to  take  un- 
der the  will,  unless  she  chooses,  in 
legal  manner,  to  take  under  the  law — 
does  not  create  a  presumption  against 


intestacy  and  in  favor  of  testacy,  but 
the  presumption  of  intestacy  still  ob- 
tains. McClanahan  v.  Williams  136 
Ind.  30,  35  X.  E.  897.  A  will  pro- 
vided that  the  testator's  wife  should 
"have  the  sole  control,  use  and  bene- 
fit" of  his  estate,  for  the  support  and 
maintenance  of  herself  and  their  child, 
so  long  as  she  remained  the  testator's 
widow.  There  was  no  further  dispo- 
sition of  the  property.  The  widow  ac- 
cepted the  provisions  of  the  will,  but 
sub.^equently  remarried.  Held,  that 
the  will  conferred  upon  the  widow  no 
separate  or  individual  estate  in  the 
property,  but  created  a  trust  to  con- 
tinue during  her  widowhood  only. 
Held,  that  as  the  will  made  no  dispo- 
sition of  the  property  beyond  the  cre- 
ation of  a  trust  for  a  limited  time, 
what  remained  at  the  expiration  of  the 
trust  descends  under  the  law  govern- 
ing the  estates  of  persons  dying  intes- 
tate. Held,  that  as  the  widow's  ac- 
ceptance of  the  terms  of  the  will  was 
not  inconsistent  with  her  contingent 
estate  under  the  law,  it  did  not  oper- 
ate as  a  relinquishment  of  her  inter- 
est, and  she  and  the  child  took  equally. 
Beshore  v.  Lytle,  114  Ind.  8,  16  X.  E. 
499. 

'■'Kayser  v.   Hodopp,   116  Ind.  428, 
19  X.  E.  297. 


§5^3 


CONSTRUCTION    OF    WILLS. 


931 


^  523.  When  devise  passes  fee  simple. — Technical  words 
of  inheritance  are  not  necessary  in  a  will  to  pass  a  fee  simple,  but 
still  to  give  a  fee  something  more  than  a  mere  devise  of  the  land 
is  necessary.  A  life  estate  only  will  pass  by  a  general  devise  un- 
less it  affirmatively  appears  from  the  will  that  the  testator  in- 
tended to  convey  a  greater  estate.'^®  This  is  the  rule  at  common 
law,  and  it  is  said  :  "There  is  no  statute  in  this  state  changing  the 
rules  of  the  common  law  as  to  the  language  necessary  to  be  used 
in  a  will  in  order  to  vest  a  fee  in  land,  but  it  is  well  settled  that  it 
is  not  necessar}^  for  that  purpose,  to  use  the  word  'heirs.'  Any 
other  word,  or  words,  denoting  an  intention  of  the  testator  to 
pass  his  whole  interest  to  the  devisee,  such  as  a  devise  of  all  my 
estate,  all  my  interest,  all  my  property,  my  whole  remainder,  all  I 
am  worth  or  own,  all  my  right,  all  my  title,  or  all  I  shall  die  pos- 
sessed of,  and  other  expressions  of  like  import,  will  convey  an 
estate  of  inheritance,  if  there  is  nothing  to  limit  or  control  the 
operation  of  such  words  or  expressions. "®° 


•^Doe  V.  Harter,  7  Blackf.  (Ind.) 
488;  Pattison  v.  Doe,  7  Ind.  282; 
Cleveland  v.  Spilman,  25  Ind.  95 ;  Roy 
V.  Rowe,  90  Ind.  54;  Fowler  v. 
Duhme,  143  Ind.  248,  42  N.  E.  623.  A 
will  containing  the  following :  "I  give 
to  my  beloved  wife,  S.  D.,  and  to  one 
heir,  S.  A.  D.,  all  my  estate,  both  real 
and  personal,  in  their  own  right,  with 
full  power  to  sell  and  convey  the 
whole  or  any  part  thereof,  for  the 
payment  of  debts,  or  otherwise,  as 
they  shall  think  proper."  Held,  that 
under  the  statute  of  1843  respecting 
wills  by  which  the  will  was  governed, 
the  devisees  were  given  a  fee-simple 
in  the  lands  devised.  Chase  v.  Salis- 
bury, 7i  Ind.  506.  Where  all  the  fee 
of  a  wife's  estate  is  devised  by  her  to 
a  trustee  with  the  power  of  manage- 
ment and  disposition,  and  a  life-estate 
in  part  of  it  is  carved  out  for  her  hus- 
band, with  the  remainder  in  fee  vested 
in  the  trustee,  the  husband  takes  no 
greater  estate  under  the  will  than  that 


carved  out  for  him.  Such  a  devise  to 
the  husband  shows  an  intention  on  the 
part  of  the  testatrix  to  make  the  tes- 
tamentary provision  take  the  place  of 
the  provision  made  by  law.  Wright 
V.  Jones,  105  Ind.  17,  4  N.  E.  281.  A 
will  read  as  follows :  "I  give  and  be- 
queath to  my  beloved  wife,  Elizabeth 
Xeidigh,  all  my  personal  property, 
both  real  and  personal,  excepting  a 
sufficient  sum  to  pay  my  just  debts 
and  funeral  expenses."  Held,  that  the 
widow  took  the  fee-simple  title  to  the 
land.  Morgan  v.  McNeeley,  126  Ind. 
537,  26  N.  E.  395. 

^Ross  V.  Ross,  135  Ind.  367,  35  X. 
E.  9;  Smith  v.  Meiser,  51  Ind.  419; 
Lennen  v.  Craig,  95  Ind.  167 ;  Chase  v. 
Salisbury,  7Z  Ind.  506;  Biggs  v.  Mc- 
Carty,  86  Ind.  352,  44  Am.  Rep.  320; 
Millett  V.  Ford,  109  Ind.  159,  8  N.  E. 
917;  Morgan  v.  McNeeley,  126  Ind. 
537,  26  N.  E.  395;  Schouler  Wills,  § 
550;  Wiley  v.  Gregory,  135  Ind.  647, 
35  N.  E.  507. 


932  INDIANA    PROBATE    LAW.  §  523 

In  applying  the  foregoing  rule  of  construction  heed  must  also 
be  had  to  that  other  rule  which  requires  an  avoidance  of  a  con- 
struction that  will  result  in  a  partial  intestacy.  As  is  said  in  one 
case:  "The  purpose  and  object  of  making  a  will  is  to  dispose  of 
one's  estate.  The  presumi)tion  is  that  when  one  forms  an  inten- 
tion to  make  a  will,  he  intends  to  dispose  of  all  his  estate;  hence 
the  rule  that  in  construing  a  will  it  will  not  be  so  construed  as  to 
create  a  partial  intestacy,  unless  the  language  used  compels  such  a 
construction.  With  like  force  and  reason,  and  within  a  proper 
application  of  this  rule,  when  the  testator  has  expressed  a  clear 
intention  to  give  an  article  of  personal  property,  or  a  tract  of  real 
estate,  to  a  designated  person,  and  tliere  are  no  limitations  as  to 
title,  or  expressed  intention  to  give  another  any  interest  in,  or  title 
to,  the  same  article  of  personal  property,  or  real  estate,  the  will 
should  be  so  construed  as  to  pass  to  the  donee,  or  devisee,  the 
same  interest,  or  title,  held  by  the  testator.  It  is  not  fair  to  pre- 
sume that  when  a  testator  says  in  express  terms  that  he  gives,  be- 
queaths, or  devises  property,  real  or  personal,  without  limiting  the 
interest  or  title,  or  making  any  other  disposition  of,  or  reference 
to  it,  his  intention  was  to  give  to  the  person  named  as  donee,  or 
devisee,  the  same  right  and  title  to  the  property  as  he  himself 
held ;  in  other  words  that  he  intends  to  dispose  of  all  the  interest 
and  title  he  has  in  it.""^ 

Where  an  estate  in  fee  is  created  in  clear  and  decisive  terms,  a 
restriction  upon  the  right  of  alienation  is  of  no  effect.  There 
may  be  a  partial  restriction,  but  there  cannot  be  a  general  one.®^ 

An  estate  may  be  devised  for  life  with  full  power  to  convey 
the  fee." 

^^  Mills  V.  Franklin,  128  Ind.  444,  28  ^'  South   v.    South,   91    Ind.   221,   46 

N.  E.  60.     See  Burns'  R.   S.   1908,   §  Am.  Rep.  591;  Downie  v.  Buennagel, 

3123.  94  Ind.  228;  John  v.  Bradbury.  97  Ind. 

*"  Allen  V.  Craft,  109  Ind.  476,  9  N.  263 ;  Silvers  v.  Canary,  109  Ind.  267,  9 

E.  919,  58  Am.  Rep.  425;  M'Williams  X.   E.  904;  Jenkins  v.  Compton,   123 

V.  Nisly,  2  S.  &  R.  (Pa.)  507,  7  Am.  Ind.  117,  23  N.  E.  1091;  Levengood  v. 

Dec.  654;  Mandlebaum  v.  McDonell,  Hoople,   124  Ind.  27,  24  N.   E.  373; 

29  Mich.  78,  18  Am.  Rep.  61 ;  DePey-  Wiley  v.  Gregory,  135  Ind.  647,  35  N. 

ster  V.  Michael,  6  N.  Y.  467,  57  Am.  E.  507.    Where  a  will  gives  and  be- 

Dec.  470n ;  Fowler  v.  Duhme,  143  Ind.  queaths  to  the  wife  of  the  testator  "all 

248,  42  N.  E.  623.  the  property,  money  and  effects"  be- 


523 


CONSTRUCTION   OF   WILLS. 


933 


An  absolute  devise  in  terms  must  be  construed  in  connection 
with  other  clauses  of  the  will  which  serve  to  modify  its  effect, 
and  a  fee  which  is  given  in  one  part  of  the  will  may  be  so  re- 
strained by  subsequent  words  as  to  reduce  it  to  a  life  estate. ^^ 

The  old  rule  of  the  common  law  that  a  devise  of  real  estate 


longing  to  the  testator,  "to  dispose  of 
at  her  own  discretion,  and  if  she  see 
cause  to  sell  the  real  estate  I  hereby 
authorize  her  to  do  so,  to  make,  exe- 
cute a  deed  without  order  of  court," 
and  provides  that  after  the  death  of 
the  wife  the  remaining  property  shall 
be  divided  between  testator's   daugh- 
ters, the  widow  has  power  to  convey 
the  fee  of  testator's  land.   McMillan  v. 
Deering,  139  Ind.  70,  38  N.  E.  398.   A 
life-estate  was  created  where  the  tes- 
tator gave  to  his  wife  all  his  property, 
principally  real  estate,  to  "be  hers  with- 
out any  interference  from  anybody  for 
the  space  of  her  lifetime.    It  shall  be 
hers  in  the  full  sense  of  ownership,  even 
so  far  that  she  is  empowered  to  sell, 
mortgage,  or  divide  the  same.   *   *   * 
But  this  shall  not  be  so  understood  as 
that  my  said  wife  has  the  right  to  di- 
vide    the     property     herein     named 
among  persons  not  kindred  to  me,  to 
the  disadvantage  of  our  children,  but 
they  shall,  after  her  death,  divide  the 
estate  among  them  equally."     Bowser 
v.  Mattler,  137  Ind.  649,  35  N.  E.  701, 
36   N.   E.   714.    A   devise,   "He   shall 
have  the  rents  and  profits  arising  from 
my  interest  in  said  property   for  his 
own    use    and    support,    but    no    part 
thereof  shall  be  subject  to  payment  of 
his  debts,  and  he  shall  not  encumber 
the  same,"  creates  a  life-estate  with- 
out a  trust,  and  is  subject  to  levy  and 
sale  for  payment  of  his  debts.  Thomp- 
son V.  Murphy,   10  Ind.  App.  464,  2)1 
X.  E.  1094.     A  testator  devised  all  his 
real  estate  to  his  wife  "for  and  during 
the  time  of  her  natural  life,"  with  di- 


rections to  her  to  conduct  the  farming 
operations  thereon  in  the  same  man- 
ner as  the  testator  would  do  if  he 
were  still  living,  with  a  view  to  keep- 
ing their  children  "together  at  home 
so  long  as  they  may  be  under  the  age 
of  twenty-one  years,  and  may  desire 
to  remain,"  with  a  gift  to  her  of  all 
the  interest  on  his  money,  and  other 
annual  profits  of  his  "estate  for  her 
maintenance  and  the  support"  of  their 
family  "so  long  as  she  shall  live;" 
and  provided  that  at  her  death  all  his 
realty  and  personalty  remaining  should 
be  divided  among  their  children,  share 
and  share  alike;  and  also  provided 
that,  in  order  to  pay  debts,  costs  of 
administration,  or  for  the  payment  of 
any  sum  given  by  the  will,  the  execu- 
tors could  sell  and  convey  at  any  time, 
without  an  order  of  court,  on  such 
terms  as  they  saw  fit,  any  of  the  real 
or  personal  property  of  the  testator, 
except  the  home  farm,  unless  in  case 
of  the  most  absolute  necessity.  Held, 
that  the  will  vested  in  the  wife  a  life- 
estate  in  the  land  and  the  fee  in  the 
children,  subject  to  be  divested  only 
in  case  a  sale  became  necessary  to  pay 
debts,  costs  of  administration,  or  any 
sum  provided  by  the  will  to  be  paid. 
Neely  v.  Boyce,  128  Ind.  1,  27  X.  E. 
169. 

"Kunz  V.  Puster,  130  Ind.  277,  29 
X.  E.  1055 ;  Giles  v.  Little,  104  U.  S. 
291,  26  L.  ed.  745;  Patty  v.  Goolsby, 
51  Ark.  61,  9  S.  W.  846;  Eubank  v. 
Smiley,  130  Ind.  393,  29  X.  E.  919; 
Xeely  v.  Boyce,  128  Ind.  1,  27  X.  E. 
169 ;  Schouler  Wills,  §  559. 


934  INDIANA    PROBATE    LAW,  ^  524 

which  is  in  general  terms  and  which  does  not  define  the  interest 
to  be  taken  by  the  devisee  passes  only  a  life  estate  is  modified  by 
section  3123,  Burns'  R.  S.  1908,  which  establishes  a  rule  of  con- 
struction. And  while  the  statute  <l(jes  not  defeat  the  common-law 
rule  it  implies  that  such  rule  sliall  not  prevail  as  against  the  mani- 
fest intention  of  the  testator  to  devise  his  entire  interest,  and  that 
such  intention  when  ascertained  must  prevail  notwithstanding  the 
nile.*'^  Nor  will  a  devise  to  one  for  life  with  full  power  of  dispo- 
sition necessarily  convey  a  fee  simple,  for  it  has  been  absolutely 
settled  in  tliis  state  that  the  power  to  convey  the  fee  may  be  given 
by  will  to  one  who  holds  only  a  life  estate.**"  Nor  can  a  devise  in 
fee  be  cut  down  by  subsequent  provisions  of  the  will  unless  the 
intention  to  do  so  is  manifest  from  words  as  clear,  certain,  and 
effective  as  those  which  create  the  fee."^ 

>;  524.  Vested  estates — Remainders. — 7"he  principle  is  well 
established  that  the  law  favors  the  vesting  of  estates,  and  courts 
will  endeavor  to  so  construe  a  will  as  to  create  a  vested  estate  if 
possible.  It  will  also  be  presumed,  in  favor  of  such  principle,  that 
words  in  a  will  which  api)ear  to  postpone  the  estate,  relate  to  the 
enjoyment  of  the  remainder  and  not  to  the  vesting  of  the  estate.*' 

The  law  not  only  favors  the  vesting  of  estates,  but  remainders 
will  never  be  held  to  be  contingent  when  they  can  be  held  to  be 
vested  consistently  with  the  apparent  intention  of  the  testator.*"* 

"  Korf  V.  Goriclis,   145  Ind.  134.  44  ^'  Borgncr   v.    Brown,    133   Ind.   391, 

N.  E.  24;   Skinner  v.  Spann,  —  Ind.  33  N.  E.  92;  Hcilman  v.  Heilman.  129 

— .  95  N.  E.  243.  Ind.  59,  28  X.  E.  310;  Harris  v.  Car- 

^Mulvane  v.  Rude.  146  Ind.  476,  45  penter,    109   Ind.   540,   10   N.   E.  422; 

N.  E.  659;  McMillan  v.  Deering,  139  Amos  v.  Amos,  117  Ind.  37,  19  N.  E. 

Ind.  70,  38  X.  E.  398 ;   Hammond  v.  543 ;  Davidson  v.  Koehler,  76  Ind.  398 ; 

Croxton,  162  Ind.  353,  69  X.  E.  250,  70  Davidson  v.  Bates.  Ill  Ind.  391,  12  X. 

N.    E.   368;    Eddy   v.    Cross.   26   Ind.  E.    687;    Davidson    v.    Hutchins,    112 

App.  643,  60  N.  E.  470;  Cain  v.  Rob-  Ind.   322.   13   X.    E.    106;    Hoover   v. 

ertson,  27  Ind.  App.  198,  61  X.  E.  26;  Hoover,  116  Ind.  498.  19  X.  E.  468; 

Cross  V.  Hendry,  39  Ind.  App.  246,  79  Wright  v.  Charley,  129  Ind.  257.  28  X. 

N.   E.  531 ;   Foudray  v.   Foudray,   44  E.  706. 

Ind.  App.  444,  89  N.  E.  499.  '"  Boling  v.  Miller,  133  Ind.  602,  33 

'^  Fowler  v.  Duhme.  143  Ind.  248.  42  X.  E.  354;  Curry  v.  Bratney.  29  Ind. 

N.   E.  623;   Hayes  v.   Martz,  45   Ind.  195;  Davidson  v.  Bates,  111  Ind.  391. 

App.  704,  84  N.  E.  546;  87  N.  E.  837.  12  X.  E.  687;  Harris  v.  Carpenter,  109 


524 


CONSTRUCTION    OF    WILLS. 


935 


The  intention  to  postpone  the  vesting  of  the  estate  must  be  clear 
and  manifest,  and  must  not  exist  by  mere  inference  or  construc- 
tion.^'' 

Land  may  be  devised  to  a  person  in  fee,  to  be  divested  on  the 
failure  of  certain  conditions,  and  then  to  vest  in  other  persons.^^ 


Ind.  540,  10  N.  E.  422.  Where  a  de- 
vise of  land  is  to  a  widow  during  her 
natural  life,  and  at  her  death  to  the 
son  of  the  testator,  if  he  be  living, 
and  if  he  be  dead  then  to  his  widow 
until  her  death  or  marriage,  and  at 
her  death  or  marriage  then  to  his 
heirs,  and,  if  there  be  no  heirs  living 
to  the  heirs  of  the  testator,  the  words 
of  survivorship  relate  to  the  death  of 
the  testator,  and  the  son  takes  an  es- 
tate in  fee-simple  in  remainder,  which 
vests  immediately  upon  the  death  of 
the  father,  but  which  he  can  only  en- 
joy in  possession  after  the  termina- 
tion of  the  life-estate  of  his  mother. 
Upon  a  conveyance  of  the  life-estate 
to  the  son  by  the  mother,  the  former 
would  become  entitled  to  possession 
of  the  land.  Hoover  v.  Hoover,  116 
Ind.  498,  19  N.  E.  468.  Where  a  life- 
estate  is  given  to  the  widow  by  will, 
the  fact  that  the  will  gives  to  the 
widow  the  unrestricted  use  of  the  per- 
sonal property  during  life,  and,  with 
others,  a  power  of  disposition  of  the 
real  estate,  thus  making  it  uncertain 
what  property  will  remain  to  distri- 
bute at  her  death  to  the  remainder- 
man, does  not  render  the  remainder 
contingent.  Heilman  v.  Heilman,  129 
Ind.  59,  28  N.  E.  310. 

"Bruce  v.  Bissell,  119  Ind.  525,  22 
N.  E.  4,  12  Am.  St.  436;  Corey  v. 
Springer,  138  Ind.  506,  11.  N.  E.  322 ; 
Heilman  v.  Heilman,  129  Ind.  59,  28 
X.  E.  310;  Miller  v.  Keegan,  14  Ind. 
502;  Borgner  v.  Brown,  133  Ind.  391, 
Zl  X.  E.  92.  The  will  of  the  testator, 
after    mentioning    the    disposition    of 


certain  property  during  his  lifetime, 
devised  to  his  wife  all  of  his  other 
property,  to  be  held  and  used  bj'  her 
during  her  natural  life.  The  will  also 
provided,  as  to  certain  notes,  that  she 
was  to  collect  the  same,  with  the  priv- 
ilege to  use  so  much  thereof  as  she 
might  deem  necessary  to  carry  on  her 
business,  &c.  The  will  further  pro- 
vided: "But  before  her  (the  wife's) 
death,  I  desire  her  to  provide  by  will, 
or  otherwise,  for  a  distribution  of 
whatever  of  my  estate  may  remain  in 
her  hands  among  her  and  my  children 
in  such  manner  as  she,  in  her  judg- 
ment, shall  deem  best  and  most  equit- 
able ;  such  distribution  not  to  take  ef- 
fect until  after  her  death."  Held,  that 
when  a  will  limits  the  estate  of  the 
tirst  taker  to  life,  the  devisee  cannot 
take  a  fee,  although  he  may  be  in- 
vested with  a  power  to  appoint  those 
who  shall  take  that  estate.  Held,  also, 
that  under  the  will  as  to  the  personal 
property  a  right  was  vested  in  the 
widow  to  use  such  of  it  as  she  chose, 
and  to  distribute  what  remained  at  her 
death,  at  her  pleasure,  among  the 
members  of  the  class  designated  by 
the  testator.  Held,  also,  that  as  to 
the  real  estate  the  fee  was  not  in  the 
widow  at  any  time,  and  she  could  not 
devise  the  same,  and  that  the  remain- 
der was  vested  in  the  heirs  at  the  date 
of  the  testator's  death.  Crew  v.  Dix- 
on, 129  Ind.  85,  27  N.  E.  728. 

"'  Boling  V.  Miller,  133  Ind.  602,  ZZ 
X.  E.  354;  Jones  v.  Miller,  13  Ind. 
Zll;  Clark  v.  Barton,  51  Ind.  165; 
Pate  V.  French,  122  Ind.  10,  23  N.  E. 


936 


IXDIAXA    PROBATE    LAW. 


§5^4 


The  rule  is  also  well  established  that  where  a  bequest  is  simply 
to  one  person,  and,  in  case  of  his  death,  to  another,  if  the  first 
devisee  survives  the  testator,  he  takes  the  estate  absolutely.  The 
words  are  held  to  refer  to  a  death  during  the  lifetime  of  the 
testator.  **- 

It  is  a  rule  of  law  that  estates  shall  be  held  to  vest  at  the  earliest 
possible  period.  The  law  looks  with  disfavor  upon  the  postpone- 
ment of  estates  and  the  intent  to  postpone  must  be  clear  and 
manifest,  and  must  not  arise  by  mere  inference  or  construction."' 
It  is  another  established  principle  that  the  law  favors  the  vesting 
of  remainders  absolutely  rather  than  contingently,  and  at  the 
earliest  possible  period,  and  presumes  that  words  of  postponement 
relate  to  the  enjoyment  and  not  to  the  vesting  of  the  estate."* 

A  remainder  which  once  becomes  vested  cannot  be  destroyed  by 
a  subsequent  event."' 


0/3;  Lougheed  v.  Dykeman's  Baptist 
Church,  129  X.  Y.  211,  29  N.  E.  249, 
14  L.  R.  A.  410n.  Where  there  is  no 
other  gift  contained  in  the  will  than 
the  direction  to  pay,  distribute  or  di- 
vide the  estate  in  the  future,  yet,  if 
such  payment,  distribution  or  division 
appear  to  be  postponed  for  the  con- 
venience of  the  estate,  fund  or  prop- 
erty, which  embraces  a  life-estate  to 
another,  the  estate  will  be  vested  and 
not  contingent.  Heilman  v.  Heilman, 
129  Ind.  59,  28  N.  E.  310. 

"=  Wright  v.  Charley  129  Ind.  257, 
28  N.  E.  706;  Borgner  v.  Brown,  133 
Ind.  391,  33  N.  E.  92;  Corey  v.  Spring- 
er, 138  Ind.  506,  37  N.  E.  322 ;  Steven- 
son v.  Fo.x,  125  Pa.  St.  568,  17  Atl. 
480.  11  Am.  St.  922;  Kelly  v.  Kelly,  61 
X.  Y.  47 ;  Whitney  v.  Whitney,  45  N. 
H.  311;  2  Jar.  Wills,  752.  Where,  by 
the  will  of  her  father,  a  daughter  is 
given  land  in  fee-simple,  subject  only 
to  the  contingency  that  she  should  die 
without  issue  surviving,  or  that  her 
surviving  issue  should  die  before  ar- 
riving at  full  age,  the  estate  taken  was 


a  determinable  fee,  and  upon  her  death 
leaving  issue,  her  husband  succeeded 
to  an  undivided  one-third  in  fee,  sub- 
ject only  to  the  same  contingency,  and 
such  third  was  subject  to  sale  on 
judgments  rendered  against  him. 
Greer  v.  Wilson,  108  Ind.  322,  9  X.  E. 
284. 

"  Aspy  v.  Lewis,  152  Ind.  493,  52  X, 
E.  756;  Doe  v.  Considine,  6  Wall.  (U. 
S.)  458;  Fowler  v.  Duhme,  143  Ind. 
248,  42  X.  E.  623. 

"Myers  v.  Carney,  171  Ind.  379,  86 
X.  E.  400;  Taylor  v.  Stephens,  165 
Ind.  200,  74  X.  E.  980;  Clore  v.  Smith, 
45  Ind.  App.  340,  90  X.  E.  917; 
IMoores  v.  Hare,  144  Ind.  573,  43  X. 
E.  870. 

"^  Crew  V.  Dixon,  129  Ind.  85,  27  X. 
E.  728.  The  law  favors  vested  estates, 
and  remainders  will  never  be  held  to 
be  contingent  when  they  can,  consist- 
ently with  the  intention  of  the  testa- 
tor, be  held  to  be  vested.  Davidson 
V.  Koehler,  76  Ind.  398;  Davidson  v. 
Bates,  111  Ind.  391,  12  X.  E.  687; 
Amos  V.  Amos,  117  Ind.  37,  19  X.  E. 


524 


COXSTRUCTIOX    OF    WILLS.  937 


Another  rule  is  that  where  real  estate  is  devised  in  terms  de- 
noting an  intention  on  the  part  of  the  testator  that  the  primary 
devisee  shall  take  a  fee  at  the  testator's  death,  with  a  devise  over, 
in  case  of  the  death  of  the  first  devisee  without  issue  such  words 
refer  to  a  death  without  issue  in  the  lifetime  of  the  testator,  and 
if  the  primary  devisee  survive  the  testator  he  will  take  an  abso- 
lute estate  in  fee  simple.'*^  When  not  inconsistent  with  the  inten- 
tions of  the  testator,  the  will  should  be  so  construed  as  to  prevent 
the  title  to  real  estate  from  remaining  contingent,  or  resting  in 
abeyance.^' 

This  test  as  to  whether  an  estate  is  vested  or  contingent  is 
given:  "The  right  and  capacity  of  the  remainderman  to  take 
possession  of  the  estate,  if  the  possession  were  to  become  vacant, 
and  the  certainty  that  the  event  upon  which  the  vacancy  depends, 
must  happen  some  time,  and  not  the  certainty  that  it  will  happen 
in  the  lifetime  of  the  remainderman,  determine  whether  or  not 
the  estate  is  vested  or  contingent. ""'  It  is  the  uncertainty  of  the 
right  that  renders  an  estate  contingent  and  not  the  uncertainty  of 
the  enjoyment.^® 

The  law  will  not  construe  a  limitation  in  a  will  into  an  execu- 

543;  Bruce  v.  Bissell,  119  Ind.  525,  22  mainder  in  fee.     Harris  v.  Carpenter, 

N.  E.  4, 12  Am.  St.  436;  Boling  v.  Mil-  109  Ind.  540,  10  N.  E.  422. 

let,  133  Ind.  602,  33  N.  E.  354;  Maris  "'Wright  v.   Charley,   129  Ind.  257, 

V   Wolfe,  46  Ind.  App.  416,  92  N.  E.  28  X.  E.  706;  Quackenboss  v.  Kings- 

661.     Survivorship  is  generally,  in  the  land,  102  N.  Y.  128,  6  N.  E.  121,  55 

absence  of  an  expressed  or  fairly  im-  Am.  Rep.  771n ;  Mickley's  Appeal,  92 

plied  intention  to  the  contrary,   con-  Pa.  St.  514;  Doe  v.  Sparrow,  13  East. 

strued  to  refer  to  the  testator's  death.  359. 

Hoover  v.  Hoover,  116  Ind.  498,  19  X.  '■"  Heilman  v.  Heilman,  129  Ind.  59, 

E.  468;  Heilman  v.  Heilman,  129  Ind.  28  X.  E.  310;  Wright  v.  Charley,  129 

59,  28  X.  E.  310;  Wright  v.  Charley,  Ind.  257,  28  N.  E.  706. 

129  Ind.  257,  28  X.  E.  706.    A  testator  ''Bruce  v.  Bissell,  119  Ind.  525,  22 

devised  certain  land  to  his  wife  for  X.   E.  4,   12  Am.   St.   436;   Corey  v. 

life,  providing  that  "at  her  death  the  Springer,  138  Ind.  506,  37  N.  E.  322; 

same  shall  be  the  property  of  and  pass  Cro.xall  v.   Shererd,  5  Wall.    (U.  S.) 

to  my  daughter  L.,  in  fee;  but  if  she,  268,    18   L.    ed.   572;    Tiedeman   Real 

said  L.,  be  not  living,  then  to  her  heirs  Property,  §  401. 

forever."     Held,  that  the  survivorship  *  Wood  v.  Robertson,  113  Ind.  323, 

referred  to  the  testator's   death,   and  15  X.  E.  457;  Corey  v.  Springer,  138 

that  the   daughter  took  a  vested   re-  Ind.  506,  37  X.  E.  322. 


93^  INDIANA    PROBATE    LAW  .  §  524 

tory  devise  when  it  can  take  effect  as  a  remainder,  nor  a  remain- 
der contingent  when  it  can  be  construed  to  be  vested.'  Xo  estate 
will  be  held  contingent  unless  very  decisive  words  of  contingency 
are  used  in  the  will,  or  it  is  necessary  to  hold  the  same  contingent 
in  order  to  carry  out  the  other  provisions  and  implications  of  the 
will.'  And  if  there  is  any  doubt  arises  in  construing  a  will  as  to 
the  point  of  time  when  the  estate  shall  vest,  the  earliest  possible 
time,  consistent  with  the  will,  will  be  fixed.' 

'  Doe  V.  Considine,  6  Wall.  (U.  S.)  '  .\fcCarty  v.  Fish,  87  Mich.  48;  Co- 

458,  37  N.  E.  322,  18  L.  ed.  869;  .Amos  rev  v.  Springer,  138  Iiul.  506  37  X    E 

V.  Amos.   117  Iml.  37,  19  X.   E.  543:  322;  Wood  v.  Robertson,  113  Ind.  323. 

Hcilman  v.  Heilnian.   129  Ind.  59.  2S  15  X.  E.  457. 

N.  E.  310;  Corey  V.  Springer.  138  Iii.I.  'Miller    v.     Keegan.     14    Ind.    502; 

506.  37  X.  E.  322  Mack  v.  Mulcahy.  47  In.l.  <jS. 


CHAPTER  XXV. 


CONTEST    OF    WILLS. 


t  525.  Who  may  contest. 

526.  Where  contested. 

527.  Contest   of   will   after   its   pro- 

bate. 

528.  As  to  undue  influence. 

529.  As  to  unsoundness  of  mind. 

530.  The  statute  only  cumulative. 

531.  Who  may  sue  to  construe  will. 

532.  Pleading    and    practice    in    ac- 

tions to  contest. 

533.  When  contestant  estopped. 


§  534.  Time  within  which  action  must 
be  brought. 

535.  Contestor  must  file  bond. 

536.  Notice  and  hearing  of  action. 

537.  Trial— May  be  by  jury. 

538.  The  evidence. 

539.  Proof  of  declarations. 

540.  Opinion  evidence. 

541.  Contest  of  foreign  wills. 

542.  Decree  of  court,  its  effect,  costs, 

etc. 

543.  Appeals. 


§  525.  Who  may  contest.— Under  the  statutes  in  this  state 
the  right  to  contest  a  will  either  before  its  probate  or  after  ex- 
ists in  favor  of  "any  interested  person.  In  the  first  instance  the 
right  takes  the  fonn  of  resisting  the  probate  of  the  will  and  has 
been  treated  of  elsewhere.^ 

^Vhi^e  the  statutes  authorizing  a  contest  of  wills  provide  that 
"any  person"  may  contest  the  validity  of  "any  will,"  or  resist  the 
probate  of  the  same,  yet  the  phrase,  "any  person,"  must  be  lim- 
ited to  such  persons  as  are,  in  some  manner,  interested  in  the  es- 
tate of  the  testator,  and  a  complaint  filed  for  the  purpose  of 
contesting  a  will  must  show  the  plaintiff  to  have  an  interest  of 
some  kind  in  the  subject-matter  involved  in  the  contest.' 

'  Ante  §  488.     Burns'  R.  S.  1908,  §  In  this  last  case  it  is  said :     "It  has 

.  3J53  been  held  by  this  court,  and  we  think 

=  Neiderhaus  v.  Heldt,  27  Ind.  480;  correctly,  that  the  first  clause  of  the 

Willett     V.     Porter,     42     Ind.     250 ;  foregoing  section  must,  ni  connection 

Schmidt   V.   Bomersbach,  64  Ind.   53.  with  other  sections  of  the  statute,  be 

939 


940  INDIANA    PROBATE    LAW.  §  525 

All  must  show  an  interest  who  join  in  such  action.'  But  it  is 
too  late  after  verdict  to  object  that  the  pleadings  do  not  show  that 
the  parties  have  any  interest  in  the  subject-matter  of  the  contest, 
particularly  in  view  of  the  fact  that  the  evidence  discloses  such 
interest.* 

l^ie  executor  and  all  persons  named  as  beneticiaries  in  a  will 
are  necessary  parties  to  an  action  to  contest  the  validity  of  such 
will."^ 

The  right  to  contest  a  will  is  purely  a  statutory  one,  and  one  in- 
sisting upon  such  right  must  bring  himself  clearly  within  the 
statute.  This  remedy  can  only  be  made  available  to  those  who 
substantially  comply  with  the  conditions  and  directions  of  the 
statute,  and  it  cannot  be  enlarged  or  changed  by  construction  to 
conform  it  to  some  particular  case.  For  this  reason  it  is  held 
that  it  the  statutory  right  to  prosecute  an  action  as  a  poor  person* 
should  be  held  to  apply  to  proceedings  to  contest  a  will  after  its 
probate,  the  contestant  would  not  thereby  be  relieved  from  giving 
the  bond  required  before  being  i>emiitted  to  contest." 

One  who  has  resisted  the  probate  of  a  will  has  had  his  day  in 
court  and  cannot  afterwards  contest  such  will  under  the  other 
statute.** 

Purchasers  of  land  from  a  devisee  under  a  will  duly  probated 
are  necessar\^  parties  in  an  action  to  contest  such  will."' 

construed   to  mean   that   any   person,  from  the  devisee  under  the 'probated 

being  a  party  in  interest,  may  contest  will    are    proper    parties    defendant. 

the  validity  of  any  will,    *    *    *    the  Roberts  v.  Abbott,  127  Ind.  83,  26  N. 

complaint  must  show  the  plaintiff  to  E.  565. 

have  an  interest  of  some  kind  in  the  *  Burns'  R.  S.  1908,  §  261. 

subject   matter   involved   in   the   con-  "Harrison  v.  Stanton,  146  Ind.  366, 

test."      Crawfordsville    Trust    Co.    v.  45  N.  E.  582;  Morell  v.  Morell,  157 

Ramsey,  —  Ind.  — ,  98  N.  E.  177.  Ind.  179,  60  N.  E.  1092. 

'  Scott  V.  Farman,  89  Ind.  580.  'Duckworth  v.   Hibbs,  38  Ind.  78; 

*  McElf  resh  v.  Guard,  32  Ind.  408.  Morell  v.  Morell,  157  Ind.  179,  60  X. 

'Harris  v.  Harris,  61  Ind.  117.     In  E.  1092. 

an  action  to  set  aside  a  will  admitted  "  Roberts  v.  .Abbott,  127  Ind.  83,  26 

to  probate,  and  to  establish  and  pro-  N.  E.  565. 
bate   a  lost   will,   purchasers    of   land 


526 


CONTEST    OF    WILLS.  94^ 


A  guardian  of  an  infant  cannot  sue  to  contest  a  will.     In  such 
case  the  infant  must  sue  by  next  friend.^" 

Devisees  or  legatees  under  a  lost  will  may  contest  the  validity 
of  another  will  which  attempts  to  dispose  of  the  same  property ; 
and  where  the  will  gives  to  an  heir  the  precise  portion  he  would 
take  as  heir  such  person  takes  by  descent  and  not  under  the  wil 
and  has  no  such  interest  in  the  will  as  to  give  a  right  to  contest 


it. 


§  526  Where  contested.— The  statute  provides  that  "an 
action  to  establish  or  set  aside  a  will  must  be  brought  m  the 
county  in  which  the  will,  if  valid,  ought,  according  to  law  to 
be  proved  and  recorded."^=^  And  as  has  been  shown  proof  ot 
a  will  must  be  made  in  the  county  of  which  the  testator  was  an 
inhabitant  immediately  previous  to  his  death,  or  if  he  was  not 
an  inhabitant  of  this  state,  at  the  time  of  his  death,  in  the 
county  where  he  left  assets,  or  into  which  assets  of  his  may  have 


come 


All  actions  in  this  state  to  contest  the  validity,  and  to  resist 
or^set  aside  the  probate  of  an  alleged  last  will,  are  purely  stat- 
utorv  and  will  be  governed  in  relation  to  the  time,  the  forum 
and 'the  grounds  of  contest,  by  the  statute  which  authorizes 
such  action.  Such  action  must  be  brought  in  the  circuit  court 
of  the  county  in  which  the  testator  resided  immediately  previous 
to  his  death;  or  if  he  was  not  an  inhabitant  of  the  state  at  the 
date  of  his  death,  then  in  some  county  in  this  state  m  which  he 
left  assets,  or  into  which  assets  of  his  might  thereafter  come. 

-Campbellv.  Fichter,  168Ind.  645,  have    come    into    such    county ;     yet 

«i  V   F  ^61  ^^here  the  court  is  one  of  general  jur- 

-McDonald  v.  McDonald,  142  Ind.  isdiction,  as  is  the  circuit  court    the 

,,  41  V   F   336  facts  giving  it  jurisdiction  of  the  sub- 

"Thompson    v.    Turner,    173    Ind.  ject-matter  need  not  affirmatively  ap- 

^o/rQ  N    E   314  P^a^  "^  the  complaint,  but  the  juris- 

''Burns'  R.  S.  1908,  §  312.    To  give  diction   will  be  presumed  unless   the 

a  court  jurisdiction  of  a  proceeding  to  contrary  appears.     Lee  v.  Templeton, 

contest  the  validity  of  a  will,  the  tes-  73  Ind.  315_ 

tator  must  have  died  in  the   county        "Burns   R-  S^  1908,  §  3136,  Harns 

where  the  contest  is  made,  or  must  v.  Harris,  61  Ind.  117. 
have  left  assets  there,  or  assets  must 


942  INDIANA  PROBATE  LAW.  §  527 

These  are  held  to  be  jurisdictional  facts,  and  the  niles  of  good 
pleading  require  that  one  or  more  of  them  be  alleged  in  the  com- 
plaint filed  in  such  action."* 

But  as  the  circuit  court  is  a  court  of  general  jurisdiction,  the 
facts  giving  it  jurisdiction  need  not  affirmatively  appear  on  the 
face  of  the  complaint,  for  unless  the  contrary  appears,  jurisdic- 
tion will  be  presumed.^" 

So  where  a  complaint  is  filed  in  a  circuit  court  in  any  county  of 
this  state  and  the  court  should  proceed  to  hear  and  dctemiine  the 
cause,  it  will  be  presumed  in  the  absence  of  any  showing  to  the 
contrary,  that  the  court  found,  either  that  the  testator  died  in  the 
county  in  which  the  suit  was  brought,  or  that  some  part  of  his 
estate  was  situated  therein. ^^ 

The  various  acts  establishing  superior  courts  in  several  counties 
of  the  state,  confer  upon  such  courts  jurisdiction,  concurrent  with 
the  circuit  courts,  in  cases  where  a  will  is  contested  after  its  pro- 
bate. 

>;  527.  Contest  of  a  will  after  its  probate. — The  statute  pro- 
vides that  any  person  may  contest  the  validity  of  any  will,  or 
resist  the  probate  thereof,  at  any  time  within  three  years  after  the 
same  has  been  offered  for  probate,  by  filing  in  the  circuit  court  of 
the  county  where  the  testator  died,  or  where  any  part  of  his  estate 
is,  his  allegation  in  writing,  verified  by  his  affidavit,  setting  forth 
the  unsoundness  of  mind  of  the  testator,  the  undue  execution  of 
the  will,  that  the  same  was  executed  under  duress,  or  was  obtained 
by  fraud,  or  any  otlier  valid  objection  to  its  validity  or  the  pro- 

"Harris    v.    Harris,    61    Ind.    117;  facts  which  give  it  jurisdiction  of  the 

Thomas  v.  Wood,  61  Ind.  132;  Suth-  subject  of  the  action  need  not  affirm- 

erland  v.  Hankins,  56  Ind.  343.  atively  appear  on  the  face  of  the  com- 

'*  Lee  V.  Tenipleton.  73  Ind.  315.    In  plaint.      It   will   be   presumed,   unless 

Kinnaman  v.  Kinnaman,  71  Ind.  417,  the   contrary  appear.  *  *  *  For   if   it 

the  court  says :     "Doubtless  if  a  com-  were   essential   that   the   facts   giving 

plaint  should  show  affirmatively  that  the  court  jurisdiction  should  affirma- 

the  court  had  no  jurisdiction  of  the  tively  appear  on  the  face  of  the  com- 

subject  of  the  action,  it  would  not  be  plaint,  the  evidence  could  not  aid  the 

error  to  dismiss  the  proceedings.    But  defect." 

where  the  court  is  one  of  general  ju-  "  Whittenberger  v.  Bower,  158  Ind. 

risdiction,   like  the  circuit  court,  the  673,  63  N.  E.  307. 


§  ^27  CONTEST    OF    WILLS.  943 

bate  thereof;  and  the  executor  and  all  other  persons  beneficially 
interested  therein  shall  be  made  defendants  thereto.'^ 

Such  action  must  be  commenced  within  three  years  after  the 
alleged  will  has  been  offered  for  probate.  But  infants  and  persons 
absent  from  the  state  or  of  unsound  mind  shall  have  two  years 
after  their  disabilities  are  removed  to  contest  the  validity  or  due 
execution  of  such  will;''  and  if  it  appears  from  the  complaint 
that  the  action  has  not  been  begun  within  three  years  after  the 
will  has  been  offered  for  probate,  a  demurrer  will  lie  for  the  want 
of  sufficient  facts. -° 

An  examination  of  the  above  statute  discloses  two  causes  for 
which  a  will  may  be  attacked,  viz. :  the  unsoundness  of  the  testa- 
tor's mind ;  the  undue  execution  of  the  will ;  that  the  same  was 
executed  under  duress,  or  by  some  fraudulent  means.  Under  the 
first  head  are  to  be  classed  every  species  of  mental  unsoundness 
that  would  render  a  party  incompetent,  while  all  objections  to  the 
validity  of  the  will  are  to  be  classed  under  the  head  of  "undue 
execution."  Duress  and  fraud  are  not  to  be  regarded  as  addi- 
tional causes  of  contest,  but  as  examples  of  undue  execution.-' 

A  will,  if  unduly  executed,  may  be  avoided,  and  the  phrase 

>«  Burns'  R.   S.   1908,  §  3154.     Only  Deig  v.  Morehead,  110  Ind.  451,  11  N. 

parties  in  interest  can  contest  the  va-  E.  458.  Parties  contesting  the  validity 

lidity  of  a  will.     Neiderhaus  v.  Heldt,  of  a  will  by  resisting  its  probate  can- 

27  Ind.  480 ;  Schmidt  v.  Bomersbach,  not  again  contest  the  same  under  this 

64  Ind.  53.     If  the  objections  filed  by  section.     Duckworth  v.  Hibbs,  38  Ind. 

the  contestant  do  not  show  any  inter-  78. 

est   on   his   part,   the   defect   may   be        "  Burns"  R.  S.  1908,  §  3159.    Cornell 

cured  by  the  evidence  when  the  con-  v.  Goodrich,  21  Ind.  179. 
testee  does  not  object  before  verdict.        "  Potts  v.  Felton,  70  Ind.  166.    The 

McElfresh  v.  Guard,  32  Ind.  408.    If  a  amendment  of  the  complaint  by  mak- 

jury  is  called  without  objection,  and  ing  new  parties  after  the  three  years 

interrogatories   are   submitted   to   the  have  expired  will  not  bar  the  action 

jury  and  answered,  and  the  court  dis-  when  the  original  complaint  was  filed 

regards    such    answers    and   makes    a  in  time.     Floyd  v.  Floyd,  90  Ind.  130. 
findincr  and  renders  judgment  there-        ^'^  Kenworthy    v.    Williams,    5    Ind. 

on,  there  is  no  available  error.     Kite  375;   Reed  v.   Watson,  27   Ind.   443; 

V.  Sims,  94  Ind.  333.     Parties  have  a  Bowman    v.    Phillips,    47    Ind.    341 ; 

right  to' a  trial  by  jury  in  proceedings  Lange  v.  Dammier,   119  Ind.  567,  21 

to  contest  the  validity  of  a  will.  Lamb  N.  E.  749. 
v..  Lamb,  105  Ind.  456,  5  N.  E.  171; 


944  INDIANA    PROBATE    LAW.  §  527 

"undue  execution"  has  been  held  to  inckide  every  species  of 
duress,  fraud,  coercion,  infancy,  revocation,  and  any  other  vahd 
objection  to  the  execution  of  the  will,  and  proof  of  either  ur  all 
of  these  may  be  made  under  the  general  allegation  of  undue 
execution. -- 

Fair  and  reasonable  influence  exerted  upon  a  person  by  means 
of  argument  and  persuasion  to  secure  the  execution  of  a  will  does 
not  invalidate  such  will.  To  invalidate  the  will  the  inlluence  used 
must  be  such  as  amounts  to  force  and  destroys  the  free  agency 
of  the  testator."* 

And  an  influence  which  may  be  lawfully  exercised  by  the  wife 
of  a  testator  may  become  unlawful  when  it  is  exercised  by  a 
woman  with  whom  he  is  living  in  adultery.*^ 

Section  3154,  Burns'  R.  S.  1908,  was  amended  by  the  legisla- 
ture in  1911,  by  adding  to  it  the  following  provisos:  "Provided, 
That  where  the  state  of  Indiana  or  any  officer  or  department 
thereof  on  its  behalf  is  made  a  beneficiar)'  under  the  terms  of  such 
will,  the  state  of  Indiana,  any  such  officer  or  department  of  said 
state  may  be  made  a  party  defendant  in  said  action  and  sued 
therein,  the  same  as  an  individual,  and  in  such  case  the  contestor 

"•  Willett  V.  Porter,  42  Ind.  250;  No-  and  proper  conduct  on  the  part  of  the 
ble  V.  Enos,  19  Ind.  12;  Bradford  v.  devisee.  Goodbar  v.  Lidikey,  136  Ind. 
Bradford,  59  Ind.  434;  Kcssinger  v.  1,  35  X.  E.  691.  In  the  contest  of  a 
Kessinger,  il  Ind.  341  ;  Vance  v.  will,  evidence  of  conversation  with  a 
Vance,  74  Ind.  370.  The  influence  ex-  legatee  (a  daughter)  who  was  alleged 
ercised  to  procure  the  execution  of  a  to  have  e.xerted  undue  influence, 
will  which  will  render  the  will  invalid  showing  her  desire  that  a  will  be  ex- 
must  be  such  as  in  some  degree  de-  ecuted,  or  making  predictions  as  to  its 
stroys  the  free  agency  of  the  testator,  contents,  not  realized,  or  containing 
and  induces  him  to  do  what  is  against  her  statement  that  but  for  her  no  will 
his  will.  Rabb  v.  Graham,  43  Ind.  1.  would  have  been  made,  had  no  ten- 
Undue  influence,  destroying  free  dency  to  show  undue  influence,  and 
agenc\',  when  a  will  is  made,  vitiates  might  be  excluded, 
the  will,  though  the  devisee  may  have  ^  Bundy  v.  McPCnight,  48  Ind.  502 ; 
no  agency  in  procuring  its  exercise  Vanvalkenberg  v.  Vanvalkenberg,  90 
and  no  knowledge  of  the  fact.     Van-  Ind.  433. 

valkenberg  v.  Vanvalkenberg,  90  Ind.  "'  Kessinger   v.    Kessinger,   Zl    Ind. 

433.     Undue  influence   is   not   proved  341.     In  this  case  it  is  said :    "We  are 

by   disclosing   relations   of    friendship  of  opinion  that  there  is  a  difference  in 

and  affection  between  the  testator  and  the  two  cases,  and  that  an  influence 

devisee,  nor  by  showing  kindly  offices  when  exercised  by  a  wife  might  be 


§  528  CONTEST    OF    WILLS.  945 

shall  cause  a  summons  in  such  action  to  be  issued  against  the 
state  of  Indiana  and  served  upon  the  governor  of  the  state  as  such 
governor  and  it  shall  be  the  duty  of  the  attorney-general  of  the 
state  of  Indiana  to  appear  and  defend  such  action  on  behalf  of  the 
state  for  the  purpose  of  protecting  the  interest  of  the  state  in 
said  will :  Provided,  however,  That  in  all  actions  where  the  state 
of  Indiana  or  any  officer  of  said  state,  or  department  thereof  is 
made  a  party  defendant,  said  action  shall  be  brought  in  the  su- 
perior court  of  "Marion  county,  Indiana,  and  said  court  shall  have 
jurisdiction  to  try  and  determine  all  rights  and  interests  of  all 
parties  interested  in  or  connected  (with)  said  action.  A  certified 
copy  of  the  judgment  in  said  cause  shall  be  filed  in  the  office  of 
the  clerk  of  the  county  where  such  will  was  probated,  or  offered 
for  probate.''"^ 

These  provisos  were  added  by  the  legislature  to  fit  a  case  which 
arose  in  Grant  county,  but  as  the  action  of  the  testator  in  that  case 
is  not  likely  to  become  contagious  this  amendment  is  of  little 
general  importance. 

§  528.  As  to  undue  influence. — Undue  influence,  in  order  to 
make  a  will  void,  must  be  directly  connected  with  its  execution 
and  must  operate  at  the  time  the  will  is  made.^®  The  question 
of  undue  influence  is  one  of  fact  and  must  be  determined  by  the 
jury  from  all  the  circumstances  of  the  case."' 

The  averment  in  a  complaint  ''that  said  will  was  unduly  exe- 
cuted" is  sufficient  as  against  a  demurrer  and  will  admit  proof  of 

lawful   and  legitimate,   but  which,   if  ing    1    Redfield    Wills,    pp.    531-2-3; 

e.xercised     by     a    woman     occupying  Dean   v.    Xegley,   41    Pa.    St.   312,   80 

merely  an  adulterous  relation  to  the  Am.  Dec.  620;  Monroe  v.  Barclay,  17 

testator,  might  be  undue  and  illegiti-  Ohio  St.  302,  93  Am.  Dec.  620;  Dela- 

mate.     This  must  be  so  from  the  very  field  v.  Parish,  25  N.  Y.  9. 

nature  of  civilized  human  society,  and  *Acts  1911,  p.  325. 

the  domestic  relations  of  life.     With-  ^  Ditton  v.  Hart,  —  Ind.  — ,  93  N. 

out  entering  upon  any  general  discus-  E.  961 ;  Floto  v.  Floto,  233  111.  605,  84 

sion  of  the  question,  w-e  content  our-  X.  E.  712. 

selves  with  a  reference  to  the  authori-  "  Friedersdorf  v.  Lacy,  173  Ind.  429, 

ties  which  support  this  view-,"'  and  cit-  90  X.  E.  766. 


60— Pro.  Law. 


946  INDIANA    PROBATE    LAW.  g   =^8 

fraud,  undue  iutlucuce  or  any  other  sufficient  cause  as  against  its 
due  execution.-" 

Undue  influence  is  defined  "as  that  which  comi>els  the  testator 
to  do  that  which  is  against  his  will,  through  fear,  or  the  desire 
of  peace,  or  some  feeling  which  he  is  unable  to  resist,  and  but 
for  which  the  will  would  not  have  been  made  as  it  was.''^'"  The 
circumstance  that  the  influence  gained  by  one  person  over  another 
was  very  great  cannot  be  treated  as  undue  if  the  person  influenced 
had  free  opix)rtunity  and  strength  of  mind  sufficient  to  select 
what  influences  should  guide  him,  and  was  in  the  full  sense  legally 
and  morally  a  responsible  being.'"  Unfree  agency  in  a  case  of 
undue  influence  is  simply  this:  The  apparent  testator  is  but  the 
instrument  by  which  the  mastering  desire  of  another  is  expressed  ; 
the  supposed  will,  or  the  particular  part  in  question,  is  not  the 
Avill  of  the  testator  except  in  the  sense  that  he  has  consented  to 
put  his  name  to  the  instrument  in  the  form  in  which  it  ap|)ears. 
Yielding  to  influence  is  of  course  consistent  with  free  agency,  and 
agency  is  free  in  the  eyes  of  the  law  however  much  the  agent  is 
influenced  by  other  men  until  the  influence  amounts  to  a  domina- 
tion of  the  will.  Persuasion  and  argument  are  not  improi)er  so 
long  as  they  do  not  overcome  free  agencv."' 

Undue  influence  is  a  relative  term,  but  must  always  be  taken  in 
the  concrete,  since  the  influence  that  is  claimed  to  be  undue  must 
have  a  correlative  in  the  mental  condition  of  the  person  who  at- 
tempts to  execute  the  will,  yet  it  must  be  remembered  that  the 
influence  that  the  law  denominates  as  undue  must  take  away  the 
supposed  testator's  free  agency  in  the  particular  instance." 

Influences  that  may  be  legitimately  used  to  induce  a  person  to 
make  a  will  must  be  fair  and  reasonable.  If  they  amount  to 
persuasions,   importunities,   force,   threats,   or  coercion  of  such 

^  Wenning  v.  Teeple.  144  Ind.   189,         "''  Stevens   v.   Leonard.   154    Ind.  67. 

41  X.  E.  600.  56  \.  E.  21,  77  Am.  St.  446n ;  Young 

=*Redfield  Wills,  p.  530:  27  \m.  &     v.  Montgomer>%  161  Ind.  68,  67  X.  E. 

Eng.  Encyc.  Law.  495.  684:   Stamets  v.   Mitchenor.   165  Ind. 

"  Schouler  Wills.  §  227.  672.  75  X.  E.  579. 

"1    Jarman    Wills    (Xote),  p.   66; 
Dale's  Appeal,  57  Conn.  127. 


§  529  CONTEST    OF    WILLS.  947 

a  character  and  degree  that  the  testator  cannot  resist  them,  they 
become  unlaw  ful.^^ 

The  relations  existing  between  the  testator  and  his  family 
may  be  shown  as  bearing  upon  the  question  of  undue  influence.^* 

§  529.  As  to  unsoundness  of  mind. — Testamentary  capac- 
ity is  presumed  in  favor  of  a  testator,  and  ever>-  person  is  held  to 
be  of  sound  mind  until  the  contran,-  is  proven,  yet  it  is  only 
necessan,-  that  a  testator,  at  the  time  of  making  his  will,  should 
be  of  such  sound  mind  and  memor\-  as  to  enable  him  to  know  and 
understand  the  business  in  hand  and  the  purpose  for  which  the 
will  is  being  made.  And  while  the  phrase,  "unsound  mind,"  in- 
cludes every  species  of  unsoundness  of  mind,  it  is  not  necessary 
that  the  testator  should  be  in  full  possession  of  all  his  faculties.^^ 
Testamentary-  capacity  is  consistent,  especially  with  ver>-  aged 
persons,  with  a  great  degree  of  mental  infirmity,  and  some 
degree  of  mental  perversion  or  aberration,  at  times,  provided 
there  is  satisfactory  proof  that  the  testator,  at  the  time  of  the 
execution  of  his  will,  really  did  comprehend  its  import  and  scope, 
and  was  not  under  the  control  of  any  improper  or  undue  influence 
or  of  any  deception  or  delusion. ^^ 

"  Bundy  v.  McKnight.  48  Ind.  502 :  "•  Burkhart  v.  Gladish.  123  Ind.  337, 

Vanvalkcnberg  v.   Vanvalkenberg,  90  24  X.  E.  118;  Durham  v.  Smith.  120 

Ind.  433;  Rabb  v.  Graham,  43  Ind.  1 ;  Ind.  463,  22  X.  E.  333;  Kenworthy  v. 

Todd  V.  Fenton,  66  Ind.  25.  Williams,  5  Ind.  375 ;  Willett  v.  Por- 

**  Staser  v.  Hogan,  120  Ind.  207,  21  ter.  42  Ind.  250;  Leach  v.  Prebster,  39 

X.  E.  911,  22  X.  E.  990.     The  court  Ind.  492;  Bundy  v.  McKnight,  48  Ind. 

says:     "The  appellees  were  permitted  502;    Runkle    v.    Gates,    11    Ind.    95; 

to  prove  by  Mrs.  Yeager.  who  is  the  Rush  v.   Megee.  36  Ind.  69.     Ante,  § 

stepmother  of  three  of  the  testator's  468. 

grandchildren,  who  were  disinherited  "  Moore   v.    Moore,   2    Bradf.    (N. 

by   the  will   in   controversy,  that   the  Y.)  261;  Bundy  v.  McKnight,  48  Ind. 

deceased  always  greeted  and   treated  502.     In  an  action  contesting  the  va- 

her  as  nicely  as  any  one  could  treat  a  lidity  of  a  will,  alleging  unsoundness 

daughter.     Under   the    issues    in    this  of    mind,    testimony    relating    to    the 

cause  it  was   not   improper  to   prove  acts,  conduct  and  language  of  the  tes- 

the  relations  that  existed  between  the  tatrix,  in  court,  prior  to  her  death,  is 

testator     and     his     family,     that     is,  admissible  as  bearing  upon  the  ques- 

whether  they  were  friendly  or  other-  tion  of  sanity.     In  such  case,  the  fact 

wise.     We    do    not    think    the    court  that  the  testatri.x  disinherited  her  only 

erred  in  admitting  this  testimony."  child,  that  he  was  needy  and  with  a 


94^  INDIANA    TROBATE    LAW.  §  529 

On  the  allegation  of  the  unsoundness  of  mind  of  a  testator  the 
burden  of  proof  is  upon  the  plaintiff  until  the  fact  of  such  un- 
soundness has  been  established.  Such  unsoundness  of  mind  must 
be  shown  to  have  existed  at  the  time  the  will  was  made;  but  if  it 
is  established  by  evidence  that  the  testator  had  been  of  unsuund 
mind  at  any  time  before  the  making  of  his  will,  the  presumption 
then  arises  that  he  was  of  unsound  mind  at  the  time  of  making 
the  will,  and  such  presumption  is  only  rebutted  by  proof,  on  the 
part  of  those  defending  the  will,  that  at  the  time  of  its  execution 
the  testator  had  been  wholly  restored,  or  at  that  time  had  a  lucid 
interval. ^^ 

A  will  cannot  be  imj^eached  because  of  a  moral  injustice  only. 
If  the  testator  be  of  sound  mind,  he  may,  from  caprice,  causeless 
malice,  or  foolish  prejudice,  cut  off  his  children  and  give  his 
property  to  strangers,  or  give  his  property  to  some  of  his  children 
to  the  exclusion  of  others.  The  moral  injustice  or  caprice  in  such 
cases  may  be  considered  as  a  circumstance  on  the  question  of 
insanity,  but  if  from  the  evidence  it  be  clear  that  the  testator  was 
sane,  the  caprice  or  injustice  is  of  no  moment  whatever.  The 
testator,  unless  of  unsound  mind,  must  be  allowed  to  make  his 
own  division  and  distribution  of  his  property. 

joung      family,      are      circumstances  had  no  title,  is  admissible  for  the  pur- 

which  may  be  considered  in  determin-  pose    of    showing    the    condition    of 

ing  the  question  of  sanity,  the  reason-  mind  of  the  testator  at  the  time  he 

ableness    of    the   will,    the    testatrix's  executed   his   will,   and   for  no   other 

family  connections,  and  her  property,  purpose.  Goodbar  v.  Lidikey,  136  Ind. 

being  proper  subjects  of  inquirj'.  Gur-  1,  35  X.  E.  691.  43  Am.  St.  296.     For 

ley  V.  Park,  135  Ind.  440,  35  N.  E.  279.  the   purpose   of   showing   the   mental 

On  the  question  of  a  testator's  men-  condition    of    the    testator,    evidence 

tal   condition   when   he   executed   the  that  the  statements  in  the  will  that  he 

will,    evidence   showing   his    state   of  had  advanced  the  sums  designated  to 

mind   the   day   before   is    admissible ;  the   parties   named   are   erroneous,    is 

and  where   the  will   in  question   was  admissible.     Lamb  v.  Lamb,   105  Ind. 

made  to  supply  one  executed  on  that  456,  5  N.  E.  171. 

day,  which  had  been  lost,  such   evi-        *^Rush  v.  Megee,  36  Ind.  69;  Tur- 

dence  was  part  of  the  res  gestae.  Dyer  ner  v.  Cook,  36  Ind.  129;  Ryman  v. 

v.  Dyer,  87  Ind.  13.     In  an  action  to  Crawford,  86  Ind.  262;  Dyer  v.  Dyer, 

set  aside  a  will,  alleging  mental  inca-  87   Ind.    13 ;    Moore   v.   Allen,  5   Ind. 

pacity   of    the    testator,    involving   no  521 ;   Durham  v.  Smith,  120  Ind.  463, 

title  to  land,  evidence  that  the  testator  22  N.  E.  333. 
devised  land  to  which  he,  at  the  time. 


§  529  CONTEST    OF    WILLS.  949 

In  determining  testamentary  capacity  the  law  takes  cognizance 
of  such  delusions  only  as  point  to  actual  unsoundness  of  mind, 
what  are  known  as  insane  delusions.  An  insane  delusion 
is  a  spontaneous  conception  and  acceptance  of  that  as  a  fact  which 
has  no  existence  except  in  the  imagination,  and  which  is  per- 
sistently believed  in  against  all  evidence  and  probability.^^  A 
testator  may  be  sane  upon  all  other  subjects  and  yet  afflicted  with 
a  delusion  upon  one  which  would  amount  to  insanity  as  to  that 
one.^^  A  monomaniac  is  a  person  who  is  deranged  in  a  single 
faculty  of  his  mind,  or  with  regard  to  a  particular  subject  only. 
Mental  incapacity  is  to  be  measured  by  its  relation  to  the  subject 
of  the  will.  Delusions  or  monomania  relating  to  subjects  foreign 
to  the  will,  and  to  the  persons  affected  thereby,  involve  no  more 
likelihood  of  actual  incapacity  than  many  other  latent  causes.^'' 

By  our  statute  an  idiot  is  classed  as  a  person  of  unsound  mind 
and  therefore  incapable  of  making  a  valid  will,  but  in  fact  idiocy 
imports  not  mere  mental  aberration,  or  weakness  of  understand- 
ing, but  a  total  deprivation  of  reason.  Blackstone  says  "a  man  is 
not  an  idiot  if  he  hath  any  glimmering  of  reason,  so  that  he  can 
tell  his  parents,  his  age,  or  the  like  common  matters.""  He  is 
a  person  wholly  destitute  of  the  reasoning  faculty,  unable  to  com- 
pare two  ideas  together,  and  utterly  incapacitated  for  the  transac- 
tion of  any  business.*^ 

But  injustice  and  inequality  in  the  disposition  of  his  property 
by  a  testator  are  circumstances  which  may  be  taken  into  consid- 
eration in  determining  his  mental  capacity."*^ 

^  Friedersdorf    v.    Lacy,    173    Ind.  X.   E.  271 ;   Thompson  v.  Thompson, 

429,   90   N.    E.    766;    McReynolds   v.  21  Barb.    (N.  Y.)    107;  Addington  v, 

Smith,   172  Ind.  336,  86  N.  E.   1009;  Wilson,  5  Ind.  137,  61  Am.  Dec.  81; 

Steinkuehler    v.    Wempner,    169    Ind.  Otto  v.  Doty,  61   Iowa  23,  IS  N.  W. 

154,  81  N.  E.  482,  15  L.  R.  A.  (N.  S.)  578;  Swygert  v.  Willard,  166  Ind.  25, 

673n;  Page  Wills,  §§  104-107.  76  N.  E.  755. 

"Teegarden  v.  Lewis,  145  Ind.  98,  -"M  Black.  Comm.  304. 

40  N.  E.  1047,  44  N.  E.  9 ;  Wray  v.  "^  Ray  Med.  Jur.,  §  60.  Bannatyne  v. 

Wray,  32  Ind.  126 ;  Blough  v.  Parry,  Bannatyne,  14  Eng.  Law  &  Eq.  581. 

144  ind.  463,  40  N.  E.  70,  43  N.  E.  ■"  Lamb  v.  Lamb,  105  Ind.  456,  5  N. 

560;  Young  v.  Miller,  145  Ind.  652,  44  E.  171;  Conway  v.  Vizzard,  122  Ind. 

X.  E.  757.  266,  23  N.  E.  771. 

'"Wait  V.  Westfall,  161  Ind.  648,  68 


950  INDIANA    PROBATE    LAW.  §  530 

And  the  mere  fact  that  one  has  been  placed  under  guardian- 
ship as  a  person  of  unsound  mind  is  not  conckisivc  evidence 
of  such  person's  incapacity  to  make  a  w  ill.** 

§  530.  The  statute  only  cumulative. — The  \  alidity  of  a  will 
may  be  tested  by  other  methods  than  those  set  out  in  these 
statutes  authorizing  contests  of  wills.  Chancery  courts  have 
often  construed  wills  and  entertained  suits  for  the  purpose,  and 
the  first  step  in  all  cases  seeking  a  proi>er  construction  of  a  will 
was  to  ascertain  the  validity  of  the  will.*"  This  chancery  power 
still  exists  in  the  courts  of  this  state,  and  there  are  many  cases 
which  recognize  the  right  of  the  courts  to  pass  upon  and  construe 
wills. ■*"  In  many  of  these  cases  the  question  came  before  the 
court  in  actions  to  tiuiet  title;  in  others,  in  actions  to  recover 
possession  of  property;  and  in  others  the  question  was  whether 
or  not  the  will  was  void  by  reason  of  the  ambiguity  of  some  of 
its  provisions. 

The  right  to  test  the  validity  of  a  will  given  by  the  statute  is 
cumulative  in  a  certain  sense,  and  is  in  addition  to  the  old  right 
in  equity.  The  court  says :  "The  statute  providing  a  method  for 
contesting  wills  has  no  application  to  such  a  case  as  this.     That 

■**  Stevens  v.    Stevens,   127   Ind.  560,  have    been    executed    by    one    under 

26  N.  E.  1078;  Redden  v.   Baker,  86  guardianship,  the  burden  is  upon  those 

Ind.  191;  Stone  v.  Damon,  12  Mass.  who   seek   to   uphold   it    to   show   by 

504;  Harrison  v.  Bishop,  131  Ind.  161,  clear,    explicit    and    satisfactory    evi- 

30   X.   E.    1069;    §   798,   post.     In    the  dence  that  at  the  time  it  was  executed 

last  case  it  was  held:  "The  adjudica-  the  maker  had  the  requisite  degree  of 

tion   of   mental   unsoundness    in    pro-  mental  capacity." 

ceedings    for    the    appointment    of    a  *^2  Story's  Equity,  S  1446. 

guardian  for  a  person,  while  it  con-  "Craig    v.    Secrist.    54    Ind.    419; 

clusively   establishes    the    fact   of    his  Fraim  v.  Millison,  59  Ind.  123 ;  Schori 

inability   to   manage   his    estate,   does  v.    Stephens,    62    Ind.    441 ;    Cann    v. 

not  necessarily  establish  the  existence  Fidier,  62  Ind.   116;   Bunnell  v.  Bun- 

of  such  unsoundness  as  would  inca-  nell,  73  Ind.  163 ;  Judy  v.  Gilbert,  77 

pacitate    him    from    making    a    valid  Ind.  96,  40  Am.  Rep.  289n ;  Haines  v. 

will.  Allen,  78  Ind.  100.  41  Am.  Rep.  555; 

It    is,    however,    prima    facie    evi-  Holbrook  v.   McCleary,  79  Ind.   167; 

dence  of  such  want  of  mental  power,  Price  v.  Price.  89  Ind.  90;  Butler  v. 

and  when   the   validity   of   a   v^rill   is  Moore,  94  Ind.  359,  and  others, 
properly  in  question,  if  it  is  shown  to 


S  r^'I  CONTEST    OF    WILLS.  95  ^ 

statute  was  not  meant  to  cut  down  the  inherent  equity  powers  of 
the  courts,  but  rather  to  enlarge  the  rights  of  parties  by  allowing 
the  probate  of  a  will  to  be  opened  and  the  question  of  the  validity 
of  the  will  investigated.    It  enlarges  the  rights  of  those  who  deny 
the  validity  of  a  will,  but  it  does  not  limit  the  rights  of  those 
who  affirm  it  to  be  valid.    There  is  no  abridgement  of  the  right 
to  have  title  quieted  to  land  devised  and  conflicting  claims  ad- 
justed.    Not  a  word  in  this  statute,  not  an  indication  in  its  spirit, 
applies  to  suits  brought  by  those  who  seek  to  make  good  their 
titles  by  upholding  a  will.     It  was  meant  for  those  who  attack, 
and  not  those  who  defend.     Its  letter  and  its  spirit  apply  only  to 
those  who  would  strike  down,  not  those  who  would  uphold,  the 
will.     There  is  no  statutoi-y  provision  conferring  a  specific  rem- 
edy where  a  devisee  or  legatee,  or  an  executor  or  an  heir,  desires 
to  settle  title  by  having  a  conclusive  adjudication  sustaining  the 
will,  but,  as  the  authorities  cited  fully  show,  there  is  a  remedy. 
If  there  is  not,  then  ever)'thing  must  remain  unsettled  and  uncer- 
tain until  the  lapse  of  three  years  from  the  date  of  the  probate. 
Elementar\'  principles  are  opposed  to  such  a  conclusion,  and  evil 
results  would  inevitably  flow  from  it."    And  "Jurisdiction  to  con- 
strue a  will,  or  to  settle  title  under  it,  carries  the  incidental  right 
to  detennine  the  validity  of  the  will,  for  without  a  decision  ot 
that  question  there  is  no  final  determination  of  the  controversy. 
This  is  so  upon  the  principle  that  authority  to  tr\'  the  main 
question  involves  the  right  to  tr}'  all  incidental  ones."" 

§  531.  Who  may  sue  to  construe  will. — The  executor  or 
the  devisees  and  legatees  or  any  of  them,  may  maintain  a  suit  to 
secure  a  construction  of  a  will,  and  the  decree  of  the  court  is 
conclusive  upon  all  who  are  parties  to  the  action.*'  It  is  said : 
"An  executor  may  sell  lands  under  a  will,  and  if  he  does  so  by 
order  of  court  the  judgment  is  conclusive  as  to  the  particular 

*■  Faught  V.  Faught,  98  Ind.  470.  But  *' Heiss   v.    Murphey,   43   Wis.   45; 

courts  of  equity  have  no  jurisdiction  Sherwood  v.  Sherwood,  45  Wis.  357, 

independent  of"  statute,   of  actions  to  30     Am.     Rep.     757;     Rosenberg     v. 

revoke  the  probate  of  a  will.     Craw-  Frank.  58  Cal.  387;  People  v.  David- 

fordsville  Trust  Co.  v.  Ramsey,  — Ind.  son.  30  Cal.  379;  Stewart  v.  Stewart, 

— ,  98  N.  E.  177.  31  Ala.  207. 


952  INDIANA    PROBATE    LAW.  .^   ;3 1 

land  onlcitHl  to  be  sold.  So,  an  executor  may  bring  an  action  ti) 
settle  contlicting  claims  between  legatees.  A  widow  may  main- 
tain a  suit  to  have  her  rights  under  a  will  judicially  determined, 
and  the  judgment  is  conclusive.  In  each  and  all  of  these  proceed- 
ings the  validity  of  the  will  is  necessarily  in  issue;  if  it  were 
otherwise,  then  nothing  would  be  settled.  In  the  cases  where 
the  suit  is  brought  by  an  executor,  the  right  to  act  as  executor  is 
involved,  as  well  as  the  i)Owers  as  such  trustee,  and  these  all  flow 
back  to  the  will,  for,  if  no  will,  then  no  executor,  and  no  powers 
as  such.  It  cannot  be  possible  that  an  executor  must  wait  three 
years  before  he  can  be  certain  that  there  is  a  will ;  if  so.  creditors, 
legatees  and  devisees  must  be  held  off,  and  everything  remain  un- 
settled. It  is  equally  clear  that  a  widow  has  a  right  to  know  her 
title  under  the  will,  and  to  know  this  is  a  sheer  impossibility  with- 
out knowing  also  that,  so  far  as  concerns  her  interests,  tliere 
is  a  will.  and.  of  course,  a  valid  one,  for  an  invalid  will  is  as 
nothing.'"" 

And  where  suit  is  brought  to  quiet  title  to  real  estate,  the  de- 
fendant may  defend  by  cross-complaint  setting  up  the  invalidity 
of  the  will  upon  which  the  plaintiff  bases  his  title  to  such  real 
estate;  and  while  the  effect  of  such  action  is  to  contest  the  validity 
of  the  will,  such  defendant  cannot  be  required  to  give  a  bond  as 
in  contests  under  the  statute.  The  court  in  one  case  says, 
"that  when  an  heir  is,  without  his  consent,  brought  into  a  court 
of  equity  by  the  executor  of  the  will  of  his  ancestor,  or  some 
other  adversely  interested  party,  and  compelled  either  to  contest 
the  will  in  that  action  or  pennit  its  validity  to  be  finally  adjudi- 
cated against  him.  he  may  avail  himself  of  all  the  defenses  open 
to  a  defendant  in  a  suit  in  equity,  including  the  right  to  file  a 
cross-action,  bringing  all  parties  in  interest  before  the  court,  and 
contesting  the  will,  just  as  he  could  have  done  had  the  statute 
never  been  enacted."  In  other  words  that  where  an  action  of  this 
kind  is  brought  by  any  one  interested  under  the  will,  it  is  a  suit  in 
equity  and  may  be  defended  as  such  and  the  validity  of  the 

"Faught   V.    Faught.   98   Ind.    470;     149;   Gilliam  v.   Chancellor,  43  Miss. 
Youmans  v.  Youmans,  26  N.  J.  Eq.     437,  5  Am.  Rep.  498. 


§532 


CONTEST    OF    WILLS. 


953 


will  challenged  without  regard  to  the  statute  providing  for  the 
contest  of  wills. ^"^ 

§  532.  Pleading  and  practice  in  actions  to  contest. — In  ac- 
tions to  contest  the  validity  of  wills  or  resist  their  probate,  the 
rules  governing"  the  trial  of  civil  actions  under  the  code  are 
applicable,  and  pleadings,  demurrers,  motions,  answers,  pleas 
in  abatement,  statute  of  limitations,  estoppel,  etc.,  are  sanctioned 
in  such  actions  by  the  reported  cases. °^ 

The  complaint  in  such  action  must  state  such  facts  as  are 
necessary  to  give  the  court  jurisdiction ;  the  death  of  the  testa- 
tor, and  whether  he  was  resident  or  non-resident  at  the  time  of 
his  death;  if  a  non-resident,  that  he  left  assets  in  the  county 
where  the  action  is  brought,  or  that  assets  have  come  into  it 
since  his  death;  and  allege  the  due  execution  of  the  will."  The 
interest  of  the  contestor  should  also  be  shown,  and  where  there 
is  more  than  one  interested  party,  all  who  have  an  interest  may 
join  in  the  action." 

""  Mason  v.  Roll,  130  Ind.  260,  29  N.     Wood,  61  Ind.  132.     The  jurisdiction 
E.  1135;  Putt  V.  Putt,  149  Ind.  30,  48     of  the  court  of  an  action  to  contest  a 


N.  E.  356,  51  X.  E.  Zll.  A  will 
which  has  been  duly  admitted  to  pro- 
bate in  another  state  cannot  be  at- 
tacked in  an  action  to  quiet  title 
brought  in  this  state,  although  the  ex- 
ecution of  the  will  was  procured  by 
fraud.  Winslow  v.  Donnelly,  119  Ind. 
565,  22  N.  E.  12. 

"  Morse  v.  Morse,  42  Ind.  365 ; 
Bowers  v.  Bowers,  53  Ind.  430;  Mc- 
Elfresh  v.  Guard.  32  Ind.  408;  Todd 
V.  Fenton,  66  Ind.  25 ;  Schmidt  v.  Bon- 
nersbach,  64  Ind.  53 ;  Turner  v.  Cook, 
36  Ind.  129;  Hayes  v.  Burkham,  67 
Ind.  359;  Perry  v.  Bland,  4  Ind.  297. 
The  suit  must  be  instituted  in  the 
county  where  the  testator  died,  or 
where  some  portion  of  the  estate  af- 
fected by  the  will  is  situated,  and  the 
complaint  should  show  the  facts  con- 
ferring jurisdiction.  Sutherland  v. 
Hankins,    56    Ind.    343;    Thomas    v. 


will  will  be  presumed  without  the 
facts  being  set  forth  in  the  complaint 
unless  the  contrary  appears.  Lee  v. 
Tcnipleton,  IZ  Ind.  315;  Kinnaman  v. 
Kinnaman,  71  Ind.  417.  The  exec- 
utor and  all  persons  named  as  bene- 
ficiaries in  a  will  are  necessary  parties 
to  an  action  to  contest  the  will.  Har- 
ris V.  Harris,  61  Ind.  117. 

"Harris  v.  Harris,  61  Ind.  117; 
Thomas  v.  Wood,  61  Ind.  132;  Cofif- 
man  v.  Reeves,  62  Ind.  334;  Kinna- 
man V.  Kinnaman,  71  Ind.  417 ;  Suth- 
erland V.  Hankins,  56  Ind.  343 ;  Lee 
V.  Templeton,  IZ  Ind.  315. 

"Xciderhaus  v.  Heldt,  27  Ind.  480; 
Morse  v.  IMorse,  42  Ind.  365.  An  ad- 
ministrator of  a  decedent  cannot  join 
with  the  heirs  in  contesting  a  will 
when  they  have  no  joint  interest  in 
the  matter.  Harris  v.  Harris,  61  Ind. 
117.     One  interested  party  may  pros- 


954  INDIANA    PROBATE    LAW.  §  532 

The  allegations  of  the  contestor  must  be  in  writing,  verified 
by  iiis  affidavit,  and  for  all  the  purposes  of  the  action  nnist  be 
treated  as  his  complaint ;  and  where  there  is  more  than  one  who 
joins  in  the  contest,  the  complaint  may  be  verified  by  any  one 
or  more  of  them.^* 

Where  the  contestor  is  an  infant,  his  complaint  may  be  verified 
by  his  next  friend.'" 

In  the  trial  of  such  actions  the  burden  of  proof  is  u\)on  the  con- 
testor to  establish  his  case  by  a  preponderance  of  the  evidence 
and  this  gives  to  him  the  right  to  open  and  close  the  argument.'"* 

It  is  the  better  practice  to  verify  the  complaint,  but  such  verfi- 
cation  is  not  necessary  as  a  jurisdictional  fact,  and  any  objection 
on  account  of  a  failure  to  attach  the  statutory  affidavit  may  be 
waived. ^^ 

In  an  action  to  contest  a  will,  the  instrument  itself  is  not 
the  foundati».)n  of  the  action,  and  it  is  not  necessary  to  file  a 
copy  of  it  with  the  complaint  as  an  exhibit;  if  so  filed  it  cannot 
be  used  to  supply  any  necessary  averment  which  is  absent  from 
the  complaint.'" 

The  executor  and  all  other  persons  beneficially  interested  must 
be  made  parties  defendant  to  such  complaint.     The  testator's 

ecute  a  suit  to  contest  a  will  without  contest  a  will.     Willctt  v.   Porter,  42 

other  parties  in  interest   heiuK  joined  Ind.  250.     Failure  to  verify  the  com- 

with    him   as   plaintilT.     Kinnaman   v.  plaint  will  not  oust  the  court  of  juris- 

Kinnanun,   71    Ind.   417.     Purchasers  diction.     Sutherland    v.    Hankins,    56 

of  lands  from  a  devisee  under  a  pro-  Ind.  343. 

bated  will  are  proper  parties  to  a  suit  °"  Moore  v.  .Mien,  5  Ind.  521 :   Sur- 

to  contest  such  will.     Roberts  v.  Ab-  ber  v.   Maytield,    156   Ind.   375,  60   X. 

bott,  127  Ind.  83,  26  N.  E.  565.    If  a  E.  7. 

question  as  to  a  defect  of  parties  is  "  Sutherland    v.    Hankins,    56    Ind. 

not  raised  at  the  proper  time  the  de-  343;  Lange  v.  Dammier.  119  Ind.  567, 

feet  will  be  deemed  waived,     Thomas  21  N.  E.  749. 

V.  Wood,  61  Ind.  132.     A  joint  com-  ""  Schmidt   v.    Bomersbach,  64   Ind. 

plaint  must  show  a  joint  cause  of  ac-  53.     In  an  action  to  contest  the  valid- 

tion    in    all    the    plaintiffs.     Scott    v.  ity  of  a  will,  it  is  not  necessary  to  set 

Farman,  89  Ind.  580.  out  with  the  complaint  a  copy  of  the 

"  Willett  v.  Porter,  42  Ind.  250.  will,   and  hence  it  is  unnecessary  to 

°"  Turner  v.  Cook,  36  Ind.   129.     It  set  out  copies  of  deeds,  or  writings, 

is    only    necessary   that    one    of    the  referred  to  in  the  will,  and  if  they  are 

plaintiffs  shall  verify  a  complaint  to  so    set    out    they    may    be    properly 


§  53-  CONTEST    OF    WILLS.  955 

widow,  when  named  as  a  beneficiary  in  his  will,  is  a  necessary 
party  defendant  in  an  action  to  contest  such  will.^'* 

The  proceeding  to  contest  a  will  being  a  special  one,  the  general 
statute  as  to  the  joinder  of  causes,  demurrers  for  misjoinder, 
and  providing  for  docketing  separately  actions  improperly  joined, 
does  not  apply  to  the  extent  of  making  it  error  to  strike  out  of  a 
complaint  in  such  proceeding,  surplus  matter,  even  though  the 
matter  stricken  out  might  state  a  cause  of  action  for  some  other 
purpose. ^'^ 

The  complaint  in  an  action  to  contest  a  will  must  show  a  cause 
of  action  in  all  the  plaintiffs  who  joined  in  the  action,  and  if  the 
action  pretends  to  be  joint  and  no  joint  cause  of  action  is  stated, 
a  demurrer  will  lie  for  want  of  sufficient  facts.  An  administra- 
tor of  the  decedent  cannot  maintain  an  action  to  contest  the  valid- 
ity, and  resist  or  set  aside  the  probate  of  a  will,  nor  will  he  be  per- 
mitted to  sustain  such  action  by  joining  with  him  the  heirs  at  law 
of  the  decedent.''^ 

The  voluntary  dismissal  of  a  suit  to  contest  a  will  does  not  pre- 
clude the  party  from  renewing  the  suit  at  any  time  within  the  lim- 
itation imposed  by  the  statute."" 

Any  person  interested  in  the  will,  or  in  the  estate  of  the  testa- 
tor may  contest  his  will  without  joining  with  him  other  interested 
parties ;  and  if  a  part  of  the  plaintiffs  to  such  an  action  dismiss 
the  same  as  to  themselves,  the  others  may  prosecute  such  action 
to  a  conclusion. ^^ 

A  complaint  to  contest  a  will  is  sufficient,,  if  it  alleges  in  gen- 
eral terms  that  the  will  was  unduly  executed ;  or  that  the  testator 
was  of  unsound  mind.  These  general  allegations  will  include 
every  species  of  unsoundness  of  mind,  undue  execution,  undue 
influence,  duress,  fraud,  etc.** 

struck    out   on   motion.     Summers    v.  is  a  cause  of  action  which   survives. 

Copeland,  125  Ind.  466,  25  N.  E.  555.  Crawfordsville  Trust  Co.  v.  Ramsey, 

*  Thomas  v.  Wood,  61  Ind.  132.  —  Ind.  — ,  98  N.  E.  177. 

**  Summers    v.    Copeland,    125    Ind.  ""  Kinnanian   v.    Kinnaman,   71    Ind. 

466,  25  X.  E.  555.  417. 

"Harris  v.  Harris,  61  Ind.  117.  *"  Kenworthy    v.    Williams,    5    Ind. 

"'Wait  v.  Westfall,  161  Ind.  648,  68  375:    Reed   v.   Watson,   27   Ind.   443; 

N.  E.  271.    The  right  to  contest  a  will  Willett  v.  Porter,  42  Ind.  250;  Bow- 


95^  IXDIAXA    PROBATE    LAW.  §  :;33 

The  probate  of  a  former  will  cannot  be  pleaded  in  bar  of 
an  action  to  contest  such  will  in  favor  of  a  later  one,  unless 
those  propounding  the  later  will  are  in  some  way  estopped  from 
disputing  the  validity  of  the  first.'"' 

In  a  proceeding  to  contest  a  will  which  has  been  admitted  to 
probate,  the  burden  of  proof  is  upon  the  person  making  such 
contest.*''^ 

§  533.  When  contestant  estopped. — A  person  may  estop 
himself  from  contesting  a  will,  and  the  fact  that  one  person  inter- 
ested has  so  estopped  himself  is  no  defense  to  a  contest  by  other 
interested  parties:  nor  does  the  fact  that  one  who  is  estopped 
joins  with  others  who  are  not  prevent  them  from  contesting  the 
will." 

A  person  who  has  received  a  legacy  under  a  will  cannot  con- 
test the  validity  of  the  will,  without  restoring  the  legacy  or 
bringing  the  money  into  court."*     As  is  said,  "A  party  cannot 

man  v.  Phillips,  47  Ind.  341 ;  Wenning  will,  and  cannot  be  maintained,  unless 
V.  Teeple,  144  Ind.  189,  41  \.  E.  600.  a  bond  is  filed  as  required  by  that  sec- 
General    allegations   that   a   will   was  tion. 

unduly  executed,  and  that  the  testator        *  Turner  v.  Cook,  36  Ind.   129.     A 

was  a  person  of  unsound  mind,  make  complaint   in   an   action   contesting   a 

a   complaint   good   under   the   statute  will  which  charges  that  the  testator's 

relating   to    the    contesting   of    wills,  mind  was  so  far  affected  that  he  no 

Lange  v.   Dammier,   119  Ind.  567,  21  longer  possessed  a  sound  and  dispos- 

N.  E.  749.     A  complaint  to  overthrow  ing   mind   and   memory,    is    sufficient 

a  will,   which   alleges   generally   that  when  tested  for  the  first  time  in  the 

"the  will  has  been  admitted  to  probate  Supreme  Court  by  an  assignment  of 

unlawfully     and     without     sufficient  error.     Under   such   an   allegation   as 

proof,"   is   too   vague   and   uncertain,  above,  proof  was  admissible,  showing 

Herbert  v.  Berrier,  81  Ind.  1.  the    extent    to    which    the    testator's 

"'Burns  v.   Travis,    117   Ind.   44,   18  mind  was  impaired,  and  the  defective 

N.   E.  45.     Where,   after  a  will   has  allegations  in  the  complaint  would  be 

been   admitted  to  probate,  a  verified  cured    by    the    verdict    of    the    jury, 

complaint   is   filed,   alleging   that   the  Burkhart  v.  Gladish.  123  Ind.  337,  24 

will  had  been  revoked  by  the  execu-  X.  E.  118. 

tion  of  a  later  will,  and  that  its  ad-        *^  Floyd     v.     Floyd,    90     Ind.     130; 

mission  to  probate  was  unlawful,  and  Faught  v.  Faught,  98  Ind.  470;  Leach 

praying  that  the   probate   thereof   be  v.  Prebster,  39  Ind.  492. 
annulled  and  the  later  will  admitted        ""Lee   v.   Templeton,   73   Ind.    315; 

to  probate,  such  proceeding  is,  in  legal  Holt  v.  Rice,  54  N.  H.  398,  20  Am. 

effect,   an  application   to   contest   the  Rep..  138.  In  an  action  by  several  per- 


8  533  CONTEST   OF   WILLS.  957 

occupy  inconsistent  positions ;  and  where  one  has  an  election  be- 
tween several  inconsistent  courses  of  action,  he  will  be  confined 
to  that  which  he  first  adopts.  Any  decisive  act  of  the  party,  done 
with  knowledge  of  his  rights  and  of  the  fact,  determines  his 
election  and  works  an  estoppel.'"^®  So  where  a  devisee  under  a 
will,  claiming  land  as  devisee,  joins  in  an  unsuccessful  suit  for 
partition  of  the  same,  without  knowledge  at  the  time  of  the 
mental  unsoundness  of  the  testator,  he  will  not  be  estopped  to 
contest  such  will.  He  has  obtained  nothing,  and  has  nothing  to 
restore.     His  election  was  without  knowledge  of  the  facts. '"^ 

If  a  decree  is  rendered  quieting  title  to  lands  claimed  by  virtue 
of  a  will,  such  decree  estops  the  parties  to  the  suit  from  after- 
ward contesting  the  validity  of  the  will.  In  such  action  where 
the  will  is  the  foundation  of  the  title,  the  judgment  settles  all 
questions  respecting  the  title  involving  the  validity  of  the  will.''^ 

One  who  prosecutes  a  claim  for  money  due  from  the  estate 
of  a  decedent,  and  after  judgment  receives  the  money  thereon, 
is  not  estopped  to  contest  the  validity  of  a  will  of  such  decedent, 
even  though  such  claim  was  prosecuted  with  knowledge  of  the 
invalidity  of  the  will.  It  was  purely  a  legal  right  which  was  in  no 
way  dependent  on  the  will."^^ 

The  probate  of  a  former  will  cannot  be  pleaded  in  estoppel 
of  an  application  to  admit  a  later  will  of  the  same  testator  to 

sons  to  contest  a  will,  an  answer  that  will  annexed,  for  services  rendered  to 
one  of  such  persons  is  a  legatee,  and  the    testator,    and    for    property    con- 
that  he  has   received  and  retains  his  verted  by  him,  did  not  estop  the  plain- 
legacy,  is  insufficient,  as  the  action  is  tiff  to  deny  the  validity  of  the  will, 
not  joint,  but  is  a  proceeding  in  rem  Roberts  v.  Abbott,  127  Ind.  83,  26  N. 
where  the  interests  of  the  parties  are  E.  565. 
several,  and  though  one  may  have  es-  *"*  Bigelow,  Estoppel,  503. 
topped  himself  to  maintain  the  pro-  '"Lee   v.    Templeton,    IZ    Ind.    315; 
ceeding,   this    fact  does   not   preclude  Rodermund  v.  Clark,  46  N.   Y.  354 ; 
the  others  who  have  united  with  him  Herman,  Estoppel,  §  475. 
in  such  proceedings.     Floyd  v.  Floyd,  "'  Faught   v.    Faught,    98   Ind.   470 ; 
90  Ind.  130.     The  fact  that  a  plaintiff,  Freeman,  Judgments,  §  249 ;  Mason  v. 
with  knowledge  of  the  execution  of  a  Roll,  130  Ind.  260,  29  N.  E.  1135. 
will,    which    disinherited    her,    prose-  '"  Roberts  v.  Abbott,  127  Ind.  83,  26 
cuted     a     claim     to     final     judgment  X.  E.  565. 
against    the    administratrix    with    the 


95^  INDIANA    PROBATE    LAW.  §  1^33 

probate,  unless  the  applicant  had  such  connection  with  the  former 
will,  or  the  probate  thereof,  as  to  estop  him  from  denyin*,'  its 
validity.  Such  ai)plication  fur  the  admission  of  a  later  will  to 
probate  is  in  legal  effect  an  application  to  contest  the  validity  of 
the  former  will,  therefore  in  such  a  proceeding  a  bond  should  1^ 
filed  as  required  by  the  statute;  and  there  is  no  impropriety  in 
joining  with  an  application  to  admit  such  later  will  t(j  probate 
a  demand  that  the  probate  of  the  fomier  will  Ije  revoked  and  set 
aside/^ 

The  approval  by  the  court  of  the  final  report  of  an  executor 
together  with  an  order  of  distribution  of  the  property  of  the 
testator  in  the  hands  of  such  executor  does  not  estop  one  inter- 
ested from  contesting  the  will  if  he  has  accepted  nothing  under 
its  provisions.  The  entering  of  an  order  of  final  settlement  in  a 
decedent's  estate  does  not  operate  to  preclude  a  contest  of  his 

Where  a  conveyance  of  land  has  been  made  by  a  testator  in  his 
lifetime  to  liis  child  in  the  nature  of  an  advancement  in  considera- 
tion that  such  child  would  make  no  claim  against  his  estate,  the 
child  is  not  thereby  estopped  to  contest  the  father's  will.'^     But 

"Burns  v.   Travis.    117  Ind.  44,    18  tion      to     contest      the     will      of     a 

N.  E.  45.     To  a  suit  to  contest  a  will,  testator,    to   appear    in    court    at    the 

an  answer  alleging  a  fuial  settlement  time  fixed  for  the  hearing  of  the  ex- 

and  an  order  of  the  court  discharging  ecutor's  final  report  and  interpose  ob- 

the   administratrix  with   the   will   an-  jcctions  to  the  final  settlement  of  the 

nexed,  presents  no  defense  where  the  estate,  for  the  reason  that  he  intends 

estate  consists  of   both   personal   and  to  contest  the  will  within  the  time  al- 

real  property.     Roberts  v.  Abbott,  127  lowed  by  law.     There  are  certainly  no 

Ind.    83,   26   X.    E.    565 ;    Heaston    v.  grounds  for  asserting,  under  the  stat- 

Krieg„  167  Ind.  101,  77  X.  E.  805,  119  ute   relative  to  the  settlement  of  es- 

Am.  St.  475.  tates,  that  the  filing  by  the  executor 

"  Stuckwisch  V.  Kamman,  166  Ind.  of  his  final  report  involves  or  tenders, 

672,  77  N.  E.  349;  Foley  v.  O'Donag-  as  an  issue,  the  validity  of  the  will, 

hue,   167  Ind.  134,  77  X.  E.  352.     In  and  that  therefore  such  issue  is  de- 

the    case    first    cited    the    court    says:  termined  and  adjudicated  by  the  judg- 

''There  is  no  provision  in  the  statute  ment   approving  the    report   so   as   to 

concerning  the  settlement  of  the   es-  preclude  any  inquiry,  in  the  future,  in 

tate  of  a  decedent  which  in  any  man-  respect  to  that  issue." 

ner  can  be  said  to  require  a  person  "  Bower  v.  Bower,  142  Ind.  194,  41 

who   contemplates    instituting    an    ac-  N.  E.  523. 


§  534  CONTEST   OF    WILLS.  959 

one  who  has  elected  to  take  under  a  will  is  precluded  from  after- 
wards assailing  the  validity  of  the  will.'*' 

§  534.  Time  within  which  action  must  be  brought. — All  ac- 
tions under  these  statutes  to  contest  the  validity  of  a  will,  or  set 
aside  its  probate,  must  be  brought  within  three  years  after  such 
will  is  offered  for  probate."  Such  action  being  purely  a  statutory 
proceeding,  the  requirements  of  the  statute  in  this  respect  must 
be  complied  with.  But  where  an  action  has  been  properly  begun 
within  the  three  years,  and  an  amended  complaint  making  new 
parties  is  filed  after  the  time  limited  has  expired,  the  action  in 
such  case  must  be  deemed  commenced  against  all  the  parties 
thereto  from  the  time  when  the  suit  was  originally  instituted. 
The  interest  of  the  parties  is  held  joint  and  inseparable,  and 
that  such  proceeding  is  substantially  one  in  rem,  and  the  court 
cannot  take  jurisdiction  of  the  subject-matter  by  fractions.  So 
where  a  petition  to  contest  a  will  is  filed  within  the  statutoiy 
period  of  limitation,  although  a  part  only  of  the  persons  interested 
are  made  parties  thereto,  the  right  of  action  is  saved  as  to  all 
who  may  ultimately  be  made  parties  to  such  action,  notwithstand- 
ing the  fact  that  some  of  them  are  not  brought  into  the  case 
until  after  the  period  of  limitation  has  expired.  Therefore,  in 
such  case,  if  the  right  of  action  is  saved  to  one  it  is  necessarily 
saved  to  all.^^ 

The  limitation  provided  in  the  statute  is  a  bar  to  all  save  those 
who  are  under  disability,  such  as  infants,  persons  of  unsound 
mind,  and  non-residents  of  the  state.  These  have  two  years  after 
the  removal  of  their  disabilities  to  contest  the  validity  or  due 
execution  of  a  will.'^ 

'*' Keys  V.  Wright,  156  Ind.  521,  60  jection  to  a  complaint  in  an  action  to 

N.    E.   309 ;    Starkey  v.    Starkey,    166  contest  a  will,  upon  the  ground  that  it 

Ind.  140.  76  \.  E.  876.  appears  to  have  been  filed  more  than 

"Burns'  R.  S.  1908,  §  3154.     Potts  three  years  after  the  will  is  alleged  to 

V.  Felton,  70  Ind.  166.  have  been  probated,  is  removed  by  an 

"  Floyd  V.  Floyd,  90  Ind.  130 ;  Brad-  amendment    of    the    record    showing 

ford  v.  Andrews,  20  Ohio  St.  208,  5  that  the  original  complaint  was  filed 

Am.  Rep.  645.  within  three  years  from  such  probate, 

^  Burns*  R.   S.   1908,   §  3159.     Cor-  Floyd  v.  Floyd,  90  Ind.  130. 
nell  V.  Goodrich,  21  Ind.  179.     An  ob- 


960  INDIANA    PROBATE    LAW.  §  535 

And  it  is  further  provided  by  statute  that  "the  final  deter- 
mination of  such  cause  against  the  plaintiff  shall  not  debar  any 
other  person  from  contesting  such  will  within  said  three  years.""" 

This  limitation  applies  to  statutory  actions  to  contest  the 
validity  of  a  will  or  resist  the  probate  thereof,  and  does  not  apply 
to  such  actions  in  equity  as  seek  a  construction  of  a  will,  or  those 
actions  where  the  question  of  the  validity  of  a  will  is  necessarily 
involved,  although  its  construction  is  not  the  main  purpose  of  the 
action. ^^ 

It  is  held  that  the  statute  of  wills  is  special  with  reference  to 
the  right  of  contest,  and  that  it  creates  a  right  not  existing  in  its 
absence,  and  gives  such  right  on  condition  that  it  be  exercised 
within  three  years,*^  and  the  right  to  contest  is  not  extended  or 
limited  by  the  general  statute  of  limitations.'*^ 

§  535.  Contestor  must  file  bond. — By  the  statute,  "before 
any  proceedings  shall  be  had  on  an  application  to  contest  a  will 
after  probate  thereof  the  person  making  the  same,  or  some 
other  person  in  his  behalf,  shall  file  a  bond,  with  sufficient  sureties, 
in  such  amount  as  shall  be  approved  by  the  clerk  of  such  circuit 
court,  conditioned  for  the  due  prosecution  of  such  proceedings 
and  for  the  payment  of  all  costs  thereon  in  case  judgment  be 
awarded  against  him."^* 

The  bond  required  b}-  this  section  of  the  statute  is  not  a  neces- 
sary pre-requisite  to  the  court's  jurisdiction  in  contest  proceed- 

^°  Burns'  R.  S.  1908,  §  3157;  Kinna-  bond  is  tendered  after  the  proceeding 

man  v.  Kinnaman,  71  Ind.  417;  Floyd  is  commenced  it  should  be  accepted. 

V.  Floyd,  90  Ind.  130.  Lange  v.  Dammier,  119  Ind.  567,  21 

^'^  But  see  Putt  v.  Putt,  149  Ind.  30,  N.  E.  749.     Failure  to  file  bond  when 

48  N.  E.  356;  51  N.  E.  337.  the    proceedings    are    instituted    does 

^Bartlett  v.    Manor,    146   Ind.   621,  not    afifect    the    jurisdiction    of    the 

45  N.  E.  1060;  Blanchard  v.  Wilbur,  court,    but    the    proceedings    may    be 

153  Ind.  387,  55  N.  E.  99.  stayed  until  a  bond  is  filed.     Coffman 

^Evansville    &c.     Storage     Co.    v.  v.  Reeves,  62  Ind.  334.     Any  proceed- 

Winsor,  148  Ind.  682,  48  N.  E.  592.  ing  to  have  a  will  declared  invalid  is 

^Burns'  R.  S.  1908,  §  3155.     While  an    application   to    contest    the    same, 

a  proceeding  to  contest  a  will  should  and  a  bond  must  be  filed  as  required 

be  dismissed  if  the  bond  required  by  by  this  section.     Burns  v.  Travis,  117 

the  statute  is  not  filed,  yet  if  a  good  Ind.  44,  18  N.  E.  45. 


§  53^  CONTEST    OF    WILLS.  96 1 

ings.  Such  proceedings  are  purely  statutory,  and  while  a  strict 
compliance  with  the  requirements  and  formalities  of  the  statute 
is  required  in  the  pleadings,  all  these  requirements  and  formalities 
are  not  necessarily  jurisdictional.  The  bond  may  be  filed  after 
the  action  has  been  commenced. ^^ 

Any  proceeding,  the  purpose  of  which  is  to  have  a  will  declared 
invalid,  is  an  application  to  contest  such  will,  and  a  bond  must  be 
filed  as  required  by  this  statute.^® 

And  one  who  has  been  permitted  by  the  court  to  prosecute  an 
action  to  contest  a  will  as  a  poor  person  is  not  by  that  act  excused 
from  giving  the  bond  required  by  this  statute."  Where,  in  a  suit, 
an  attempt  is  made  by  the  plaintiff  to  assert  some  right  under 
a  will,  and  the  defendant  by  a  cross-complaint  contests  the  valid- 
ity of  such  will,  the  defendant  will  not  be  required  to  file  a  bond.*^ 

The  dismissal  of  the  action  as  to  part  of  the  plaintiffs  does  not 
annul  the  bond  already  on  file  as  to  those  who  remain. ^^ 

While  the  filing  of  a  bond  is  not  pre-requisite  to  jurisdiction, 
yet  a  failure  to  do  so,  if  properly  presented  to  the  court,  is  suffi- 
cient cause  for  a  dismissal  of  the  action.^*' 

§  536.  Notice  and  hearing  of  action. — After  the  filing  of 
the  application  it  is  further  provided  that:  "After  the  service 
of  citation  upon  the  defendants  fourteen  days  before  the  hear- 
ing of  such  cause,  or  upon  proof  of  the  publication  of  notice 
made  after  the  filing  before  said  clerk  of  an  affidavit  of  a  dis- 
interested person  that  the  person  so  notified  is  not  a  resident  of 
the  state,  or  that  his  residence  is  unknown  (such  publication 
being  made  for  three  weeks  successively  in  a  weekly  newspaper 
printed  and  published  in  the  county,  or,  if  none  be  published 
in  such  county,  then  in  the  county  nearest  thereto,  thirty  days 

^  Coffman   v.   Reeves,  62  Ind.  334 ;  '*  Mason  v.  Roll,  130  Ind.  260,  29  N. 

Lange  v.   Dammier,   119  Ind.  567,  21  E.  1135;  Putt  v.  Putt,  149  Ind.  30,  48 

N.  E.  749.  N.  E.  356,  51  N.  E.  Zi7. 

®°  Burns  v.  Travis,    117  Ind.  44,   18  ^  Kinnaman  v.   Kinnaman,   71    Ind. 

N.  E.  45.  417. 

"Harrison  v.  Stanton,  146  Ind.  366,  '"Lange  v.  Dammier,   119  Ind.  567, 

45  N.  E.  582 ;   Blanchard  v.  Wilbur,  21  N.  E.  749. 
153  Ind.  387,  55  N.  E.  99. 

61 — Pro.  Law. 


962  INDIANA    PROBATE    LAW.  §  537 

before  the  hearing  of  the  cause),  the  court  may  proceed  to  hear 
and  determine  such  cause;  and  if  any  of  the  defendants  thereto 
are  minors,  the  court  shall  appoint  guardians  to  take  care  of 
their  interests  in  the  controversy.""' 

Where,  under  this  section,  notice  is  given  by  publication  "three 
weeks  successively"  it  means  twenty-one  days,  and  the  necessary 
time  required,  therefore,  for  the  notice  would  be  fifty-one  days."* 

The  procedure  as  to  notice  to  the  parties  when  the  probate  of 
a  will  is  resisted  in  court  is  the  same  in  all  resi)ects  as  upon  the 
contest  of  a  will  after  probate."^ 

§  537.  Trial — May  be  by  jury,  etc. — Issues  of  fact  in  such 
cases  are  triable  by  a  jury.  The  issue  is  not  one  of  exclusively 
equitable  jurisdiction.  It  is  said :  "The  proceeding  to  contest 
a  will  in  a  court  of  law  unrler  our  system  is  purely  one  of  statu- 
tory creation,  and  the  provisions  of  section  409  of  the  code  of 
1 88 1  do  not  apply  to  such  proceedings.  In  order  to  bring  a  case 
within  the  provisions  of  that  section  of  the  code,  it  must  appear 
that  the  proceeding  was  such  as  was  exclusively  one  of  chancery 
jurisdiction,  and  a  proceeding  cannot  be  of  chancery  jurisdic- 
tion which  is  the  creature  of  a  positive  statute  and  was  unknown 
to  the  old  courts  of  chancery.  The  statute  of  1843  g^^e  a  right 
to  a  jur\'  trial  in  express  terms,  and  this  repels  the  implication 
that  an  action  to  contest  a  will  was  of  exclusive  equitable  juris- 
diction. The  right  to  a  trial  by  jury  is  treated  as  not  open  to 
question  by  the  authors  who  have  written  upon  the  question.""* 

Such  actions  being  held  to  be  purely  of  statutory  origin  a  trial 
by  jury  is  demandable  as  of  right."'  The  burden  of  proof  being 
upon  the  contestor  he  is  entitled  to  open  and  close  the  case."" 

"Burns'  R.  S.  1908,  §  3156.  E.  458;   Trittipo  v.  Morgan,  99  Ind. 

^  Loughridge     v.     Huntington,     56  269. 

Ind.  253.  "*  Deig  v.   Morehead,   110   Ind.  451, 

"'McGeath  v.  Starr,  157  Ind.  320,  61  11   N.  E.  458.     See  Hite  v.  Sims,  94 

N.  E.  664.  Ind.  333. 

"  Lamb  v.  Lamb,  105  Ind.  456,  5  X.  «"  Moore  v.  Allen.  5  Ind.  521 ;  Sur- 

E.    171;    1    Redfield    Wills,    49,    50;  ber  v.  Mayfield,  156  Ind.  375,  60  N. 

Sackett's  Instructions  to  Juries,  432;  E.  7. 
Deig  V.  Morehead,  110  Ind.  451,  11  N. 


538 


CONTEST   OF   WILLS. 


963 


The  action  of  an  administrator  or  executor  in  the  trial  of  an 
action  to  contest  a  will  in  failing  to  call  the  physician  who  attend- 
ed the  testator,  and  in  refusing  to  permit  him  to  testify  in  behalf 
of  the  plaintiff,  cannot  be  commented  upon  in  the  argument,  nor 
considered  by  the  jury  in  their  determination  of  the  case,  and  it 
is  error  to  instruct  the  jury  that  they  may  consider  such  fact.®^ 

§  538.  The  evidence. — In  a  proceeding  to  contest  a  will  the 
parties  are  competent  witnesses  even  though  the  executor  or  ad- 
ministrator of  the  estate  of  the  testator  is  a  party  to  such 
suit.  This  rule,  however,  seems  to  be  limited  to  evidence  showing 
the  mental  condition  of  the  testator,  for  there  are  cases  where 
the  question  turns  upon  matters  connected  with  the  execution 
of  a  will,  in  which  the  parties  would  be  incompetent  witnesses."^ 


'^  Brackney  v.  Fogle,  156  Ind.  535, 
60  N.  E.  303.  In  this  case  the  court 
says :  "The  cases  constituting  the 
class  to  which  Hinshaw  v.  State,  147 
Ind.  334  [47  N.  E.  157]  and  Lee  v. 
State,  post  [156  Ind.  541,  60  N.  E. 
299]  541,  belong,  and  which  are  exten- 
sively collected  in  1  Greenleaf  on  Ev. 
(16th  ed.),  §  195b,  and  which  hold 
that  it  is  proper  for  counsel  to  com- 
ment upon  the  failure  to  call  accessi- 
ble witnesses  who  know,  or  are  sup- 
posed to  know,  about  the  facts  in  con- 
troversy, are  founded  upon  the  single 
presumption  that  the  testimony  such 
absentees  might  give  is  reasonably 
presumed  to  be  prejudical  to  the 
party's  cause,  or  defense,  and  cannot 
therefore  be  accepted  as  authority  in 
cases  where  the  absence  of  the  testi- 
mony rests  upon  a  confidential  rela- 
tion which  may  involve  matters  pre- 
judicial to  the  character  or  memory 
of  the  party,  as  well  as  to  the  subject- 
matter  of  the  suit.  It  is  not  difficult 
to  conceive  cases  wherein  the  testi- 
mony of  a  witness  would  be  useful  as 
affecting  the  suit,  but  the  statute  [is] 


invoked  to  protect  matters  of  a  graver 
concern.  The  rule  does  not  therefore 
apply  to  the  failure  to  call  a  priv- 
ileged witness.  To  sustain  the  rul- 
ings complained  of  would  amount  to 
little  less  than  a  repeal  of  the  statute. 
If  to  claim  its  benefits  is  to  be  ani- 
madverted upon  by  opposing  counsel, 
and  the  fancies  of  ingenious  advo- 
cates turned  against  the  cause  of  the 
party  making  it,  and  become  a  proper 
consideration  for  the  jury  in. deter- 
mining their  verdict,  then  the  confi- 
dence of  the  sick  room,  demanded  by 
public  policy,  and  which  the  statute 
seeks  to  secure,  would  be  so  exposed 
to  violation  as  to  keep  it  in  a  con- 
stant state  of  intimidation." 

■^  Lamb  V.  Lamb,  105  Ind.  456,  5  N. 
E.  171;  Coryell  v.  Stone,  62  Ind.  307; 
Staser  v.  Hogan,  120  Ind.  207,  21  N. 
E.  911,  22  N.  E.  990;  Wiseman  v. 
Wiseman,  IZ  Ind.  112,  38  Am.  Rep. 
115;  Cupp  V.  Ayers,  89  Ind.  60;  Cot- 
trell  v.  Cottrell,  81  Ind.  87;  Burkhart 
v.  Gladish,  123  Ind.  ZZ1 ,  24  N.  E.  118; 
Wallis  V.  Luhring,  134  Ind.  447,  34  N. 
E.  231. 


964 


INDIANA    PROBATE    LAW. 


538 


In  such  proceeding,  the  wife,  being  an  heir  at  law  of  the 
testator,  is  a  competent  witness  in  her  own  behalf  although 
her  husband  has  been  joined  with  her  in  the  action."'' 

The  subscribing  witnesses  to  the  will,  in  an  action  to  set  aside 
the  will  are  competent  witnesses  as  to  the  testator's  mental  con- 
dition.^ 

The  record  of  the  probate  and  proof  of  a  will  is  admissible  in 
an  action  to  contest  such  will." 

The  construction  of  a  will  is  a  legal  question  and  where  it  is 
proper  to  submit  the  provisions  of  a  will  to  the  jury,  it  should  be 
done  under  an  instruction  from  the  court  as  to  the  legal  effect  of 
such  provisions.' 

The  fact  that  a  will  made  prior  to  the  one  being  contested 
was  procured  by  undue  influence  is  not  to  go  to  the  jury  as  a 
circumstance  against  the  will  in  controversy.* 

The  attending  physician  is  not  a  competent  witness  to  testify 
to  the  mental  and  physical  condition  of  the  testator  prior  to,  or 


"  Call  V.  Byram,  39  Ind.  499. 

'  Call  V.  Byram,  39  Ind.  499. 

■  Summers  v.  Copeland,  125  Ind. 
466,  25  N.  E.  555.  In  this  case  it  was 
in  substance  held  that :  In  an  action 
to  contest  a  will,  on  the  ground  of  the 
unsoundness  of  mind  of  the  testator, 
it  is  riot  error  to  admit  in  evidence 
the  will,  and  probate  thereof,  although 
the  probate  contains  the  ex  parte  affi- 
davit of  one  of  the  witnesses,  stating 
that  the  testator  was  of  sound  mind 
at  the  time  of  the  execution  of  the 
will.  Where  the  record  of  a  will  is 
oflfered  in  evidence  the  probate  and 
will  cannot  be  severed,  and  the  will 
admitted  and  the  probate  rejected. 
Where  an  instruction  is  found  in  a 
series  of  instructions  upon  the  subject 
of  unsoundness  of  mind,  and  in  an 
instruction  preceding  and  in  another 
following  it  the  law  on  that  subject  is 
correctly  stated,  it  is  not  objectiona- 
ble as  tending  to  lead  the  jury  to  the 


conclusion  that  the  rule  announced  is 
applicable,  also,  to  the  issue  of  undue 
influence.  Conway  v.  Vizzard,  122 
Ind.  266,  23  X.  E.  771. 

'State  v.  Patterson,  68  Me.  473; 
Magoe  V.  McXcil.  41  Miss.  17,  90  Am. 
Dec.  354;  Underbill  v.  Vandervoort, 
56  X.  Y.  242 ;  Ditton  v.  Hart,  —  Ind. 
— ,  93  N.  E.  961 ;  Taylor  v.  Kelly,  31 
Ala.  59,  68  Am.  Dec.  150. 

*  Turner  v.  Cook,  36  Ind.  129.  It  is 
said  in  this  case :  "The  court  told  the 
jury  that  if  the  making  of  the  will 
which  was  executed  ten  years  before 
the  one  in  question,  was  procured  by 
undue  influence,  that  it  would  be  a 
circumstance  that  the  jury  might  con- 
sider in  deciding  whether  or  not  the 
execution  of  this  one  was  so  procured. 
We  think  this  instruction  was  not 
correct.  The  manner  of  the  execution 
of  that  will  was  not  in  question.  The 
defendants  were  not  called  upon  to 
sustain  it." 


^33^ 


CONTEST    OF    WILLS. 


96: 


at  the  time  of  his  making  a  will,  where  such  knowledge  was 
acquired  by  him  in  his  professional  capacity.  The  law  forbids 
the  physician  from  disclosing  what  he  learns  in  the  sick  room  no 
matter  by  what  method  he  acquires  his  knowledge.  ° 

And  this  same  rule  applies  to  knowledge  acquired  by  an  attor- 
ney within  the  scope  of  his  professional  business,  where  the 
relation  of  attorney  and  client  exists  between  him  and  the  tes- 
tator.^ As  this  rule  is  one  of  privilege  and  goes  only  to  the 
competency  of  the  witness  to  testify,  it  may  be  waived  by  the 
proper  parties." 

The  mental  condition  of  a  testator  both  before  and  after  the 
execution  of  his  will  may  be  inquired  into  when  the  contest  of 
such  will  is  based  upon  the  unsoundness  of  mind  of  such  testator. 
The  presumption  is  in  favor  of  sanity,  but  once  it  is  shown  that 
a  person  was,  at  one  time,  insane  or  of  unsound  mind,  the  pre- 
sumption changes,  and  such  condition  is  presumed  to  continue, 
until  it  is  shown  that  the  sanity  of  the  person  has  been  tempora- 
rily or  whollv  restored.** 


•  Heuston  v.  Simpson,  115  Ind.  62, 
17  N.  E.  261,  7  Am.  St.  409;  Carthage 
Tpk.  Co.  V.  Andrews,  102  Ind.  138,  1 
X.  E.  364,  52  Am.  Rep.  653 ;  Williams 
V.  Johnson,  112  Ind.  273,  13  N.  E.  872; 
Gurley  v.  Park,  135  Ind.  440,  35  N.  E. 
279;  Renihan  v.  Dennin,  103  N.  Y. 
573,  9  N.  E.  320,  57  Am.  Rep.  770; 
Rapalje  Law  Wit.,  §  272. 

•  Gurley  v.  Park,  135  Ind.  440,  35  X. 
E.  279;  Jenkinson  v.  State,  5  Blackf. 
(Ind.)  465;  Bigler  v.  Reyher,  43  Ind. 
112. 

•  Gurley  v.  Park,  135  Ind.  440,  35  X. 
E.  279;  Pence  v.  Waugh,  135  Ind.  143, 
34  X.  E.  860;  Morris  v.  Morris,  119 
Ind.  341,  21  X.  E.  918;  Bank  v.  Mer- 
sereau,  3  Barb.  Ch.  (X.  Y.)  528. 

'Rush  V.  Megee,  36  Ind.  69;  Ken- 
worthy  V.  Williams,  5  Ind.  375;  Wal- 
lis  V.  Luhring,  134  Ind.  447,  34  X.  E. 
231.  If  a  testator  has  mental  capac- 
ity sufficient  to  comprehend  the  extent 


and  value  of  his  estate,  the  number 
and  names  of  the  persons  who  are  the 
natural  objects  of  his  bounty,  and 
their  deserts  with  reference  to  their 
treatment  of  him,  and  a  memory  suf- 
ficient to  retain  these  facts  long 
enough  to  direct  the  preparation  of  a 
will,  he  is  mentally  competent  to  exe- 
cute the  will.  Runkle  v.  Gates,  11 
Ind.  95 ;  Bundy  v.  McKjiight,  48  Ind. 
502.  Mental  derangement  amounting 
to  insanity  in  any  form  renders  a  per- 
son incompetent  to  make  a  will.  Eg- 
gers  V.  Eggers,  57  Ind.  461 ;  Burk- 
hart  V.  Gladish,  123  Ind.  337,  24  X.  E. 
118.  An  unequal  distribution  of  an 
estate  by  a  testator  does  not  justify 
an  inference  that  he  was  insane,  but 
injustice  and  inequality  may  be  con- 
sidered in  determining  the  mental  ca 
pacity  of  the  testator.  Lamb  v.  Lamb, 
105  Ind.  456,  5  X.  E.  171 ;  Conway  v. 
Vizzard,  122  Ind.  266,  23  X.  E.  771. 


62 — Pro.  L.\\v, 


C)66  INDIANA    PROBATE    LAW.  §  538 

A  mere  belief  in  witchcraft  is  not  of  itself  sufficient  evidence 
of  the  insanity  of  a  testator." 

A  party  in  an  action  to  contest  a  will  cannot  testify  respecting 
things  which  were  not  open  to  the  observation  of  all  the  friends 
and  acquaintances  of  the  testator,  nor  can  a  party  complain  of  the 
admission  of  evidence  the  substance  of  which  he  has  himself 
elicited.  And  where  a  will  is  contested  on  the  ground  that  it  is 
a  forgery,  the  evidence  need  not  show  the  identical  person  whose 
hand  perpetrated  the  forger}'.^" 

Where  the  mental  capacity  of  the  testator  is  involved,  facts 
and  circumstances  which  tend  to  show  his  mental  condition,  both 
prior  and  subsequent  to  the  execution  of  the  will,  may  he  received 
in  evidence;  and  the  i)criod  of  time  which  may  be  covered  by 
such  investigation  relative  to  his  mental  capacity  is  left  largely 
to  the  discretion  of  the  court  in  each  particular  case.'' 

The  rule  that  confidential  communications  made  to  an  attorney 
in  the  course  of  his  professional  business  are  privileged  does  not 
apply  to  testamentarv'  dispositions  where  the  controversy  is  be- 
tween the  heirs  and  devisees  of  the  testator.  In  such  case  an 
attorney  who  drew  the  will  may  testify  as  to  communications 
made  to  him  by  the  testator  in  reference  to  such  will." 

When  a  contest  is  on  the  ground  of  v.  Stevens,  127  Ind.  560,  26  N.  E.  1078. 

insanity    of    the    testator,    his    mental  The    testimony    of    a    witness     with 

condition  both  before  and  after  the  whom     a     testator     had     frequently 

execution  of  the  will  may  be  shown,  charged  his  wife  with  improper  inti- 

Dyer  V.   Dyer.  87   Ind.   13;   Staser  v.  macy,  that  he  had  never  had  sexual 

Hogan,  120  Ind.  207,  21  X.  E.  911,  22  intercourse  with  the  wife  of  the  tes- 

N    E.  990.  tator,   was    admissible   as   tending   to 

"Addington  v.   Wilson,  5  Ind.   137.  prove  the  allegation  of  the  complaint 

When   it   is   shown   that   the   testator  that    the     testator     in    making    such 

was   at   one   time   of   unsound   mind,  charges  was  influenced  by  insane  de- 

such  a  state  will  be  presumed  to  con-  lusions.    Burkhart  v.  Gladish,  123  Ind. 

tinue  until  it  is  shown  that  sanity  has  337,  24  N.  E.  118. 

been    restored.     Rush    v.    Megee,    36  "'  McDonald  v.  McDonald,  142  Ind. 

Ind.   69 ;    Kenworthy   v.    Williams,   5  55,  41  N.  E.  336. 

Ind.  375.     If  a  testator  was  adjudged  "*  Bower  v.  Bower,  142  Ind.  194.  41 

insane  and  placed  under  guardianship  X.  E.  523. 

before  executing  a  will,  persons  claim-  "^  Kern  v.  Kern,  154  Ind.  29,  55  X. 

ing  under  the  will  must  show  that  he  E.   1004,  overruling  in  part  Gurley  v. 

has  been  restored  to  sanity.     Stevens  Park,  135  Ind.  440,  35  X.  E.  279.    The 


§538 


CONTEST    OF    WILLS. 


967 


The  testimony  of  a  witness,  in  an  action  to  contest  a  will  on 
account  of  the  unsoundness  of  mind  of  the  testator  as  to  the 
capacity  of  the  testator  to  transact  business  is  incompetent,  as 
that  is  not  the  issue.  The  precise  question  the  jury  is  called  upon 
to  decide  is  the  capacity  of  the  testator  to  intelligently  transact 
the  business  of  making  a  will.'^  In  such  cases  the  testimony  of 
the  family  physician  as  to  communications  made  to  him  by  the 
testator  as  his  patient,  are  privileged  and  cannot  be  testified  to  by 
such  physician  over  objection." 

While  a  belief  in  spiritualism  is  not  of  itself  controlling  evi- 
dence of  an  unsound  mind,  yet  where  it  appears  that  the  will  in 


leading  case  upon  this  subject  is  Rus- 
sell V.  Jackson,  9  Hare  387,  in  which 
Lord  Justice  Turner  says,  that,  "The 
disclosure  in  such  cases  can  affect  no 
right  or  interest  of  the  client.  The 
apprehension  of  it  can  present  no  im- 
pediment to  the  full  statement  of  his 
case  to  his  solicitor,  *  *  *  and  the 
disclosure,  when  made,  can  expose  the 
court  to  no  greater  difficulty  than  pre- 
sents itself  in  all  cases  where  the 
courts  have  to  ascertain  the  views  and 
intentions  of  parties,  or  the  objects 
and  purposes  for  which  dispositions 
have  been  made.  In  Hageman's  Priv. 
Com.,  §  86,  the  rule  laid  down  in  Rus- 
sell V.  Jackson,  9  Hare  387,  is  con- 
cisely stated  thus  :  "That  communi- 
cations between  a  testator  and  his  so- 
licitor in  reference  to  the  testator's 
will,  are  not  privileged  after  the  death 
of  the  testator;  contra  as  to  commun- 
ications between  the  same  solicitor 
and  the  executors."  Russell  v.  Jack- 
son, 9  Hare  387,  is  cited  with  ap- 
proval in  Wharton  on  Evidence,  and, 
in  treating  upon  the  subject  of  pro- 
fessional privilege  it  is  said:  "The 
privilege,  it  should  also  be  remem- 
bered, is  meant  to  protect  the  living 
in  their  business  relations,  and  cannot 


be  invoked  when  the  question  arises 
as  to  the  intention  of  a  deceased  per- 
son in  respect  to  the  disposition  of  his 
estate."  Wharton  on  Ev.  (3rd  ed.), 
§  59L  In  Graham  v.  O'Fallon,  4  Mo. 
338,  it  is  said,  that  an  attorney  who 
draws  up  a  will  is  entirely  competent 
to  testify  to  its  contents  in  order  to 
set  it  up  as  a  lost  will,  and  his  testi- 
mony is  not  subject  to  the  objection 
that  it  discloses  the  confidential  com- 
munications of  a  client.  This  view  of 
the  rule  as  to  such  communications, 
and  the  competency  of  the  solicitor  to 
testify  to  them,  is  sustained  by  the  de- 
cisions in  the  following,  among  other 
cases :  Blackburn  v.  Crawford,  3 
Wall.  (U.  S.)  175,  18  L.  ed.  186;  Scott 
v.  Harris,  113  111.  447;  Sheridan  v. 
Houghton,  6  Abb.  N.  Cas.  (N.  Y.) 
234,  16  Hun  (N.  Y.)  628;  Pence  v. 
Waugh,  135  Ind.  143,  34  N.  E.  860; 
Denning  v.  Butcher,  91  Iowa  425,  59 
N.  W.  69;  Doherty  v.  O'Callaghan, 
157  Mass.  90,  31  N.  E.  726,  17  L.  R. 
A.  188n. 

"Brackney  v.   Fogle,   156  Ind.  535, 
60  N.  E.  303. 

"Towles  v.  McCurdy,  163  Ind.   12, 
71  X.  E.  129. 


968 


INDIANA    PROBATE    LAW. 


§539 


question  was  to  some  extent  at  least  prompted  by  so-called  spir- 
itual revelations,  such  belief  may  be  shown  to  the  jury/^ 

An  executor  who  has  no  personal  interest  in  the  property  trans- 
mitted by  a  will  is  a  competent  witness  in  a  proceeding  to  contest 
such  will/"  also  a  competent  witness  in  support  of  the  will  as  to 
matters  occurring  during  the  lifetime  of  the  testator.'^ 

§  539.  Proof  of  declarations. — Statements  or  declarations 
of  a  testator  made  before,  or  after,  or  contemporaneously  with 
the  execution  of  a  will,  may  be  admitted  in  evidence  as  tend- 
ing to  show  his  mental  condition  at  the  time  of  such  execution; 
but  unless  made  at  or  so  near  the  time  of  the  execution  of  the  will 
as  to  be  considered  a  part  of  the  res  gestae,  such  statements  are 
not  at  any  time  competent  to  show  fraud  or  undue  influence/' 


"  Steinkuchler  v.  Wempner,  169 
Ind.  154,  81  N.  E.  482,  15  L.  R.  A.  (N. 
S.)  673n. 

'"  Hiatt  V.  McColley,  171  Ind.  91,  85 
N.  E.  772. 

"Whiteman  v.  Whiteman,  152  Ind. 
263,  53  N.  E.  225. 

■^  Bower  v.  Bower,  142  Ind.  194,  41 
N.  E.  523 ;  Hayes  v.  West,  37  Ind.  21 ; 
Todd  V.  Fenton,  66  Ind.  25 ;  Bundy  v. 
McKnight,  48  Ind.  502;  Vanvalken- 
berg  V.  Vanvalkenberg,  90  Ind.  433; 
Conway  v.  Vizzard,  122  Ind.  266,  23 
N.  E.  771;  Goodbar  v.  Lidikey,  136 
Ind.  1,  35  N.  E.  691,  43  Am.  St.  296. 
In  a  proceeding  to  contest  a  will  on 
the  grounds  of  mental  incapacity  and 
undue  influence,  a  conversation  be- 
tween the  testator  and  another  in  re- 
lation to  the  former's  views  upon  the 
subject  of  making  wills,  in  which  he 
spoke  strongly  against  giving  one 
child  a  larger  share  of  the  estate  than 
another,  is  competent.  Staser  v.  Ho- 
gan,  120  Ind.  207,  21  N.  E.  911,  22  N. 
E.  990.  Mere  declarations  of  a  testa- 
tor, not  made  in  connection  with  the 
execution  of  a  will,  are  not  admissible 
for  the  purpose  of  showing  undue  in- 


fluence; but  declarations  made  before 
the  execution  of  the  will,  when  the 
will  is  made  in  conformity  with  such 
declarations,  are  admissible  by  way  of 
rebuttal  of  proof  of  undue  influence. 
When  by  physical  or  mental  superior- 
ity, one  obtains  an  advantage  in  a 
transaction  over  another  who  is  en- 
feebled in  mind  and  body,  or  weak- 
ened by  disease  or  old  age,  the  person 
obtaining  such  advantage  will  be  re- 
quired to  show  that  the  transaction 
was  a  fair  one,  provided  he  was  pres- 
ent and  actively  concerned  in  bringing 
about  the  result  complained  of;  but 
the  presumption  in  favor  of  the  valid- 
ity of  a  will  should  be  increased 
rather  than  diminished  from  the  cir- 
cumstance that  a  bequest  was  made 
to  one  with  whom  the  testator  had 
maintained  intimate  and  confidential 
relations  during  life.  Goodbar  v. 
Lidikey,  136  Ind.  1,  35  N.  E.  691,  43 
Am.  St.  296.  Declarations  of  a  testa- 
tor, made  when  not  engaged  in  exe- 
cuting the  will,  are  not  admissible  to 
show  undue  influence.  Hayes  v.  West, 
37  Ind.  21. 


§  539  CONTEST    OF    WILLS.  969 

This  rule  also  applies  to  written  declarations  of  the  testator  as 
letters  written  by  him  and  other  wills  executed  by  him."  But  it  is 
also  held  that  declarations  of  the  testator  in  harmony  with  the 
provisions  of  the  will  in  controversy  are  admissible  to  sustain 
such  will.^° 

But  evidence  of  conversations  of  the  testator,  which  have  no 
tendency  to  prove  either  unsoundness  of  mind  or  undue  influence, 
should  be  excluded  as  immaterial.-^ 

Evidence  of  the  admissions  and  declarations  of  one  of  several 
legatees  or  devisees  is  not  admissible  against  the  other  legatees  or 
devisees  in  an  action  to  contest  a  will.'^ 

There  is  much  conflict  of  authority,  however,  upon  this  ques- 
tion;  but  the  weight  seems  to  be  that  the  conversations,  admis- 
sions and  declarations  of  one  legatee  or  devisee  cannot  be  ad- 
mitted in  evidence  against  his  co-devisees  or  co-legatees.  They 
are  said  to  not  have  that  joint  interest  in  the  will  which  will  make 
the  admissions  of  one  admissible  against  the  others.^^ 

But  where  such  admissions  are  made  by  one  who  is  sole  leg- 
atee, and  there  are  no  others  interested  who  could  be  aft'ected  by 

'"Floto  V.  Floto,  233  111.  605,  84  N.  tify   as   to    the   kind  -and   quality   of 

E.  712 ;  Ditton  v.  Hart,  —  Ind.  — ,  93  work    and    labor    performed    by    the 

N.  E.  961.  plaintiffs   for  the  testator  during  the 

^Compher    v.    Browning,    219    111.  time  they  lived  at  home,  and  their  con- 

429,  76  N.  E.  678,  109  Am.   St.  346 ;  duct  toward  him,  such  evidence  going 

Ditton  V.  Hart,  —  Ind.  — ,  93  N.  E.  to  show  whether  the  will  was  natural 

691_  or  unnatural,  and  whether  the  parties 

-^  Vance  v.  Vance,  74  Ind.  370.  Dec-  disinherited  had  so  conducted  them- 

larations  of  the  testator  as  to  the  im-  selves  toward  the  testator  as  to  merit 

portunities  of  a  devisee  for  a  favora-  disinheritance.     Burkhart   v.    Gladish, 

ble  will,  made  at  a  time  so  remote  123  Ind.  337,  24  N.  E.  118. 
from  the  execution  of  the  paper  that        ""  Hayes   v.   Burkam,   67   Ind.   359 ; 

they  are  not  part  of  the  res  gestae,  can  Staser  v.  Hogan,  120  Ind.  207,  21  N. 

be  considered  only  upon  the  question  E.  911,  22  N.  E.  990;  Ryman  v.  Craw- 

of  testamentary  capacity.  Vanvalken-  ford,  86  Ind.  262;  Forney  v.  Ferrell, 

berg  v.  Vanvalkenberg,  90  Ind.  433.  4  W.  Va.  729;  Thompson  v.  Thomp- 

^  Hayes  v.  Burkam,  67  Ind.  359.    It  son,  13  Ohio  St.  356;  Shailer  v.  Bum- 
was  not  error  for  the  court  to  permit  stead,  99  Mass.  112. 
the  parties  and  other  witnesses  to  tes- 


970 


INDIANA    PROBATE    LAW. 


540 


his  admissions,  they  are  admissible  against  his  interest  or  those 
of  his  heirs.^* 

The  testator's  declarations  made  before  the  execution  of  the 
will  as  to  the  disposition  he  intended  to  make  of  his  property, 
which  correspond  with  the  disposition  made  in  the  will  and  that 
tend  to  support  it,  are  admissible  for  that  purpose.-^  While 
this  is  a  correct  exposition  of  the  law  as  applied  to  the  question 
of  unsoundness  of  mind,  it  is  equally  as  well  settled  that  such 
declarations  cannot  be  considered  in  connection  with  the  issue  of 
undue  influence,"'*  except  it  may  be  by  way  of  rebuttal  to  sustain 
the  will  and  show  that  it  has  been  made  in  conformity  to  the 
repeated  declarations  of  the  testator.-' 

§  540.  Opinion  evidence. — Opinion  evidence  has  been  de- 
fined to  be  "the  conclusions  of  witnesses  concerning  certain  propo- 
sitions, drawn  from  ascertained  or  supposed  facts,  by  those  who 


='Wallis  V.  Luhring,  134  Ind.  447, 
34  N.  E.  231 ;  Taylor  Est.,  §  588. 

"■^  Staser  v.  Hogan,  120  Ind.  207,  21 
N.  E.  911,  22  N.  E.  990;  Bundy  v. 
McKnight,  48  Ind.  502.  Where,  prior 
to  making  his  will,  and  while  in  good 
health,  the  testator  declared  his  inten- 
tion to  dispose  of  his  property  sul)- 
stantially  as  disposed  of  in  the  will, 
such  fact  tends  to  support  the  will. 
Lamb  v.  Lamb,  105  Ind.  456,  5  N.  E. 
171.  Where  the  jury  are  instructed 
that  statements  of  the  testator  prior 
to  the  making  of  the  will  in  reference 
to  his  intended  disposition  of  his 
property  might  be  considered  by  them, 
and  that  if  his  stated  intention  of  dis- 
posing of  his  property  corresponded 
substantially  with  the  disposition 
made,  it  was  an  important  fact  to  be 
considered  in  determining  the  validity 
of  the  will,  such  instruction  is  a  cor- 
rect exposition  of  the  law  as  applied 
to  the  issue  of  unsoundness  of  mind. 
Conway  v.  Vizzard,  122  Ind.  266,  23 
N.    E.   771.     In    an    action    contesting 


tlic  validity  of  a  will,  the  jury  was  in- 
structed to  consider  numerous  mat- 
ters relating  thereto,  including  declar- 
ations made  by  the  testator  some  time 
previous  to  the  making  of  his  will, 
showing  that  he  designed  to  make  the 
will  as  it  stands.  Such  instruction  was 
correct  as  affecting  the  capacity  of 
the  testator  to  make  a  valid  will.  And 
the  mere  fact  that  the  jury  are  told 
that  if  they  find  certain  evidence  to 
be  established,  certain  conclusions 
may  be  drawn  therefrom,  does  not  un- 
duly emphasize  such  evidence.  Good- 
bor  V.  Lidikey,  136  Ind.  1,  35  N.  E. 
691,  43  Am.  St.  296. 

-"Conway  v.  Vizzard,  122  Ind.  266, 
23  N.  E.  771 ;  Hayes  v.  West,  Z7  Ind. 
21 ;  Todd  v.  Fenton,  66  Ind.  25 ;  Van- 
valkenberg  v.  Vanvalkenberg,  90  Ind. 
433 ;  Gurley  v.  Park,  135  Ind.  440,  35 
X.  E.  279. 

^  Goodbar  v.  Lidikey,  136  Ind.  1,  35 
N.  E.  691 ;  Redf.  Wills,  568 ;  Schouler 
Wills,  §  343;  Roberts  v.  Trawick,  17 
Ala.  55,  52  Am.  Dec.  164n. 


540 


CONTEST    OF    WILLS.  9/1 


have  had  better  opportunities  than  the  ordinary  individual  or 
witness  to  judge  of  the  truth  or  falsity  of  such  propositions,  or 
who  are  familiar  with  the  subject  under  inquiry,  and  give  their 
conclusions  from  the  facts  within  their  own  knowledge  concern- 
ing certain  questions  involved  in  the  issue.'"'  The  general  rule 
is  that  witnesses  must  state  facts  and  not  opinions;  that  it  is 
usurping  the  province  of  the  court  or  jury  to  allow  them  to  draw 
conclusions  or  inferences  from  the  facts  stated.""  This  general 
rule,  however,  has  many  exceptions,  one  of  which  is  in  reference 
to  the  sanity  or  insanity  of  the  testator,  in  cases  where  his  will  is 
contested  on  the  ground  that  he  was  of  unsound  mind  at  the  time 
of  its  execution. 

Opinion  evidence  in  such  cases  resolves  itself  into  two  classes, 
that  of  expert  witnesses  and  of  non-expert  witnesses.     The  rule 
as  to  admissibility  of  the  opinions  of  these  two  classes  is  not  the 
same.   An  expert,  as  the  word  imports,  is  one  having  experience. 
The  books  furnish  no  clearly-defined  rule  as  to  what  amount  of 
experience,  knowledge,  etc.,  is  necessary  to  constitute  an  expert. 
Much  always  depends  upon  the  nature  of  the  question  in  regard 
to  which  an  opinion  is  asked.'*^    Such  witnesses  may,  in  a  proper 
case,  give  their  opinions  upon  a  given  state  of  facts  presented  to 
them  in  the  form  of  hypothetical  questions.     A  question  purely 
hypothetical,  though,  should  not  be  asked.    The  expert's  opinion 
should  be  based  upon  his  own  testimony,  or  facts  within  his  own 
personal  knowledge,  or  upon  facts  assumed  to  have  been  proven 
in  the  case.   In  one  case  it  is  said :  "The  party  seeking  an  opinion 
in  such  case  may,  within  reasonable  limits,  put  his  case  hypotheti- 
cally,  as  he  claims  it  to  have  been  proved,  and  take  the  opinion  of 
the  witness  thereon,  leaving  the  jury,  of  course,  to  determine 
whether  the  hypothetical  case  put  is  the  real  one  proved.'"' 

-7  Am   &  Eng.  Encyc.  Law,  491.  St.  146;  Page  v.  Parker,  40  N.  H.  47; 

^''McNiel  V    Davidson,  Zl  Ind.  336;  Mobile  Life   Ins.   Co.   v.   Walker,   58 

Heath  V.   Slocum,  115  Pa.   St.  549,  9  Ala.  290.     An  expert  witness  cannot 

Atl    259  •  Abbott  v.  People,  86  N.  Y.  express  an  opinion  as  to  the  sanity  of 

460-  Campbell  v.  State,  10  Tex.  App.  the  testator  based  upon  the  ^evidence, 

560,'  McDonald  v.  McDonald,  142  Ind.  but   a  hypothetical   question  must  be 

55   41  N.  E.  336.  asked.     Rush  v.  Megee,  36  Ind.  69. 

^Ardesco  Oil  Co.  v.  Gilson,  63  Pa.  '^Bishop   v.    Spining,   38   Ind.   143; 


972 


INDIANA    PROBATE    LAW. 


§540 


The  question  when  put  need  not  embody  all  the  matters  of 
which  there  is  any  evidence.^^ 

The  competency  of  a  witness  who  is  introduced  as  an  expert 
must  be  shown  before  his  opinion  can  be  given.  Until  he  is  proven 
to  be  an  expert  it  is  proper  to  exclude  all  questions  which  call  for 
his  opinion. ^^     . 

Under  the  rule,  however,  where  the  witness  has  been  shown  to 
possess  the  requisite  qualifications  of  an  expert^  and  having  seen, 
conversed  with,  and  examined  the  testator,  he  is  authorized  to 
express  an  opinion  as  to  the  mental  condition  of  such  testator.^* 

It  is  not  proper  in  asking  hypothetical  questions  to  incorporate 
in  them  the  opinion  of  other  expert  witnesses.  An  opinion  of  an 
expert  witness  cannot  be  based  upon  opinions  expressed  by  other 
experts.     Facts,  not  opinions,  must  be  assumed  in  the  questions.^^ 

A  non-expert  witness  cannot  give  his  opinion  upon  a  hypotheti- 


Rush  V.  Megee,  36  Ind.  69;  Guetig  v. 
State,  66  Ind.  94,  32  Am.  Rep.  99n; 
Nave  V.  Tucker,  70  Ind.  15;  Davis  v. 
State,  35  Ind.  496,  9  Am.  Rep.  760n; 
Goodwin  V.  State,  96  Ind.  550 ;  Elliott 
V.  Russell,  92  Ind.  526;  Cowley  v. 
People,  83  N.  Y.  464,  38  Am.  Rep.  464 ; 
Hotchkiss  V.  Mosher,  48  N.  Y.  478; 
Railroad  Co.  v.  Schultz,  43  Ohio  St. 
270,  54  Am.  Rep.  805. 

*=  Goodwin  v.  State,  96  Ind.  550. 

^  Hinds  v.  Harbon,  58  Ind.  121; 
Stennett  v.  Pennsylvania  Fire  Ins. 
Co.,  68  Iowa  674,  28  N.  W.  12;  Hig- 
bee  v.  Guardian  Mut.  Life  Ins.  Co.,  53 
N.  Y.  603;  Russell  v.  Cruttenden,  53 
Conn.  564,  4  Atl.  267;  Spring  Co.  v. 
Edgar,  99  U.  S.  645,  25  L.  ed.  487.  In 
Ft.  Wayne  v.  Coombs,  107  Ind.  75,  7 
N.  E.  743,  57  Am.  Rep.  82,  it  is  said : 
"A  witness  was  introduced  by  the  ap- 
pellees, and  testified  to  facts  showing 
that  he  was  qualified  to  testify  as  an 
expert.  The  appellant  asserted  a  right 
to  examine  him  as  to  his  qualifica- 
tions before  the  appellees  proceeded 
with  their  examination,  but  the  court 


denied  their  request.  It  is  for  the 
court  to  determine  whether  the  wit- 
ness is  or  is  not  qualified  to  testify  as 
an  expert,  and  the  question  as  to  his 
competency  is  exclusively  for  the 
court.  *  *  *  It  is  quite  clear  that 
the  court  must  decide  the  question  of 
the  qualification  of  the  witness,  and 
when  it  is  made  to  appear  prima  facie 
that  the  witness  possesses  the  requis- 
ite qualification  the  court  may  admit 
the  testimony,  and  is  not  bound  to  al- 
low a  preliminary  cross-examination. 
*  *  *  If  the  evidence  satisfies  the 
court  of  the  qualification  of  the  wit- 
ness, it  is  not  bound  to  permit  a  pre- 
liminary cross-examination,  though  it 
would,  no  doubt,  have  a  right  to  do 
so,  and  in  our  judgment  this  right  is 
one  that  should  be  very  liberally  ex- 
ercised." 

"  Stevens  v.  Leonard,  154  Ind.  67, 
56  X.  E.  27,  77  Am.  St.  446n. 

"^  Ditton  V.  Hart,  —  Ind.  — ,  93  N. 
E.  961;  Louisville  &c.  R.  Co.  v.  Fal- 
vey,  104  Ind.  409,  3  N.  E.  389,  4  N.  E. 
908. 


540 


CONTEST    OF    WILLS.  973 


cal  statement  of  the  facts,  but  must  base  such  opinion  wholly 
upon  facts  within  his  pwn  knowledge.  The  rule  is  that  witnesses 
who  are  not  experts  are  competent  to  give  an  opinion  as  to  the 
soundness  or  unsoundness  of  mind  of  a  testator,  but  such  wit- 
nesses are  required  to  give  to  the  jury  the  facts  upon  which  such 
opinion  is  based.  The  witness  is  therefore  competent  to  give  a 
statement  of  all  he  may  know  about  such  testator,  both  before 
and  after  it  is  claimed  that  his  mind  failed,  together  with  what 
he  did  and  said,  and  the  change,  if  any,  in  his  manner,  with  a 
view  of  enabling  the  jury  to  weigh  and  test  the  value  of  such  wit- 
ness's opinion  when  given.^® 

It  is  somewhat  difficult,  under  this  rule,  to  fix  a  limit  to  the 
facts  about  which  a  party  may  testify,  and  it  is  perhaps  impos- 
sible to  fix  any  exact  rule  which  would  be  an  inflexible  guide  in 
all  cases,  but  in  giving  the  facts  upon  which  the  witness  bases  his 
opinion,  it  cannot  be  doubted  that  he  should  be  permitted  to  state 
every  fact  which  could  be  reasonably  made  the  foundation  of  an 
opinion  as  to  the  mental  condition  of  the  testator.  If  not  per- 
mitted to  state  all  the  facts,  the  rule  permitting  parties  to  testify 
as  to  the  mental  condition  of  a  testator  would  be  of  little  value, 
as  the  court  or  jury  would  be  without  the  means  of  weighing  such 

opinions." 

But  where  it  is  practicable  to  place  palpably  before  the  jury 
the  facts  upon  which  the  witnesses  base  their  opinions,  it  is  per- 

''  Staser  v.  Hogan,  120  Ind.  207,  21  and  after  the  execution   of   his  will, 

N    E.  911,  22   N.   E.  990;   Lamb  v.  was  a  competent  witness  to  give  an 

Lamb   105  Ind.  456,  5  N.  E.  171 ;  Con-  opinion  as  to  his  soundness  of  mind, 

way  V.  Vizzard.  122  Ind.  266,  23  N.  E.  Ryman  v.  Crawford,  86  Ind.  262.     A 

771;  Clinev.  Lindsey,  110  Ind.  337,  11  witness    having    testified    as    to    the 

N    E.  441;  Mills  v.  Winter,  94  Ind.  physical  and  mental  condition  of  the 

3^9-  Leach  v.  Prebster,  39  Ind.  492;  testator  during  the  last  year  of   his 

Ryman  v.  Crawford,  86  Ind.  262.  life,  a  question  on  cross-exammation 

'''  Burkhart  v.  Gladish,  123  Ind.  337,  as  to  whether  the  witness  would,  dur- 

24  N.  E.  118;  Fiscus  v.  Turner,  125  ing   that   period,   have   taken   a   note 

Ind  46,  24  N.  E.  662.  A  person  not  an  from    the   testator,    and   whether    he 

expert,'  after   testifying   that   he   had  ever  heard  anybody  question  his  san- 

long    known    the    testator,    being    a  ity,  is  not  competent.     Staser  v.  Ho- 

neighbor,  had   often  dealt  with  him,  gan,  120  Ind.  207,  21  N.  E.  911,  22  N. 

and  conversed  with  him  both  before  E.  990. 


974 


INDIANA    I'KOHATi;    LAW 


§540 


haps  as  well  to  restrict  them  to  such  facts,  and  thus  leave  the  jury 
to  form  their  own  opinion  from  sucii  facts,  without  the  opinions 
of  witnesses.^**  The  rule  which  admits  the  opinion  of  non-expert 
witnesses  in  such  cases  is  based  upon  necessity,  and  rests  upon  the 
proposition  that  there  may  be  something  in  the  looks  and  manner 
of  a  person,  which  may  contribute  to  the  conclusion  that  he  is  of 
unsound  mind,  which  cannot  be  described  in  words  by  the 
witness."" 

Under  the  iiile  permitting  a  non-expert  to  give  an  opinion  it  is 
frequently  difficult  to  fix  a  limit  to  the  facts  about  which  the  wit- 
ness may  testify,  as  it  is  evident  tlie  weight  of  the  opinion  given 
must  of  necessity  depend  upon  the  facts  upon  which  it  is  based/** 
The  facts  on  which  sucli  witness  bases  his  conclusion  may  be  asked 
for  on  cross-examination.  If  any  material  facts  are  stated  at  all 
by  the  witness  lending  to  show  such  knowledge  and   intimacy 


"'Railroad  Co.  v.  Schultz,  43  Ohio 
St.  270,  54  Am.  Rep.  805;  Carthage 
Tpk.  Co.  V.  .Andrews,  102  Ind.  138,  1 
N.  E.  364,  52  .\ni.  Rep.  657.  Suit  to 
contest  a  will  on  the  ground  that  the 
testator  was  of  unsound  mind.  Held, 
that  evidence  that  the  testator  had  ex- 
pressed the  opinion  that  some  of  his 
children,  contestants,  had  mistreated 
him,  stating  no  fact,  with  an  opinion 
expressed  by  such  children,  as  wit- 
nesses, that  they  had  not  mistreated 
him,  was  too  intangible  to  justify  an 
instruction  that  if  the  testator  was  in- 
fluenced in  framing  his  will  by  such 
belief,  and  that  it  was  a  delusion,  the 
fact  would  justify  a  verdict  for  the 
contestants.  Held,  that  an  admission 
by  one  of  several  contestees  that  the 
testator  was  of  unsound  mind,  was 
not  admissible  in  evidence.  Held,  that 
evidence  that  a  tract  of  land  devised 
to  one  of  the  contestees  was  purchased 
with  money  of  the  testator's  first  wife, 
and  that  the  title  was  taken  by  mis- 
take in  his  own  name,  was  not  admis- 
sible.   Shorb  v.  Brubaker,  94  Ind.  165. 


■'Carthage  Tpk.  Co.  v.  Andrews, 
102  Ind.  138,  1  N.  E.  364,  52  Am.  Rep. 
()53.  In  a  proceeding  to  set  aside  a 
will  on  the  ground  of  the  mental  in- 
capacity of  the  testator  to  execute  it, 
an  instruction  to  the  jury,  that  the 
testimony  of  the  testator's  neighbors, 
who  had  long  been  acquainted  with 
him,  and  who  had  frequent  opportun- 
ities of  observing  his  mind,  was  en- 
titled to  greater  weight  than  that  of 
witnesses  of  equal  sagacity,  whose  op- 
portunities were  more  limited,  was  in- 
correct. Cline  V.  Lindsey,  110  Ind. 
337,  11  N.  E.  441.  Where  a  physician 
is  present,  in  his  professional  capac- 
ity, when  a  testator  makes  his  will, 
knowledge  and  information  obtained 
then  and  there  as  to  the  sanity  of  the 
testator  is  privileged,  and  cannot  be 
brought  in  evidence,  unless  such  priv- 
ilege is  waived;  and  the  same  is  true 
of  communications  to  the  attorney 
who  drew  the  will.  Gurley  v.  Park, 
135  Ind.  440,  35  N.  E.  279. 

*"  Bower  v.  Bower,  142  Ind.  194,  41 
N.  E.  523 ;  Schouler  Wills,  §  209. 


§  541  CONTEST    OF    WILLS.  975 

with  the  testator  as  to  enable  him  to  form  an  opinion  of  the  tes- 
tator's mental  condition,  it  is  the  duty  of  the  trial  court  to  permit 
such  opinion  to  be  expressed,  and  to  go  to  the  jury  for  whatever 
it  may  be  worth. *^ 

§  541.  Contest  of  foreign  wills. — The  original  act  relating 
to  the  filing,  recording,  etc.,  of  foreign  wills  made  no  provision 
whatever  for  contesting  the  validity,  and  resisting  or  setting  aside 
the  probate  of  such  wills,  or  of  the  certified  copies  thereof  when 
produced  in  the  proper  courts  of  this  state. ^-  But  by  an  act  sup- 
plemental thereto,  afterwards  approved,  the  following  statute  was 
enacted :  "In  all  cases  of  foreign  wills  and  testaments  heretofore 
admitted  or  hereafter  to  be  admitted  to  probate,  or  which  have 
been  or  may  be  offered  for  record  and  filing  in  any  county  of  this 
state,  any  person  interested  in  the  estate  of  the  testator  may  con- 
test such  will  or  testament  within  the  time,  in  the  manner,  and 
for  any  or  all  the  causes  prescribed  by  the  laws  of  Indiana  in 
cases  of  the  contest  of  domestic  wills:  Provided,  That  nothing 
in  this  section  shall  be  so  construed  as  to  allow  the  contest  of  any 
foreign  will  which  may  have  been  probated,  or  filed  and  recorded, 
in  any  county  of  this  state,  more  than  three  years  before  the  com- 
mencement of  such  contest."^^ 

By  reference  to  such  original  act  it  will  be  seen  that  provision 
is  made  for  the  production  in  the  courts  of  this  state  for  the  filing 
and  recording  of  foreign  wills;  first,  where  the  original  will  itself 
duly  certified,  etc.,  is  produced,  and  secondly,  of  copies  of  such 
wills  and  the  probate  thereof  duly  certified,  etc.**  And  it  is  held 
that  the  above  quoted  statute  is,  in  its  terms,  applicable  only  to 
the  first  mentioned  case,  wherein  the  original  will  is  itself  pro- 
duced, either  for  filing  or  probate.  The  court  says :  "It  is  certain 
that  this  supplemental  act  does  not,  in  express  terms,  provide  for 
contesting,  in  the  courts  of  this  state,  a  foreign  will,  when  a  copy 

"  Surgart  v.  Willard,  166  Ind.  25,  Id     fordsville    Trust    Co.    v.    Ramsey,    — 
N.  E.  755 ;   Blume  v.  State,  154  Ind.     Ind.  —  98  N.  E.  177. 
343,  56  X.  E.  771 ;  Rarick  v.  Ulmer,        *^  Harris    v.    Harris,    61     Ind.    117. 
144   Ind.   25.   42   N.   E.    1099;    Craw-        ^  Burns' R.  S.  1908,  §  3158. 

■"  Harris    v.    Harris,    61    Ind.    117. 


976  INDIANA    PROBATE    LAW.  §  54 1 

thereof  and  the  probate  thereof,  duly  certified,  etc.,  may  be  of- 
fered therein  for  filing  and  record.  The  constitutionality  of  said 
act,  as  it  reads,  is  at  least  questionable ;  but  if  it  provided  for  con- 
testing, in  the  courts  of  this  state,  a  foreign  will  when  a  certified 
copy  of  such  will  and  the  probate  thereof  in  the  proper  court  or 
any  other  of  the  United  States,  was  produced  therein  for  filing 
and  record,  it  is  clear,  we  think,  that  such  a  provision  would  be  in 
violation  of  both  the  letter  and  spirit  of  the  first  section  of  the 
fourth  article  of  the  constitution  of  the  United  States,  which  re- 
quires that :  Tull  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  ever}-  other 
state.'  "-'= 

In  another  case  the  court,  in  commenting  upon  this  decision, 
says :  "It  goes  much  farther  than  we  are  required  to  do  here,  for 
it  denies  the  right  to  attack  in  any  method  and  for  any  cause.  It 
is  possible  that  the  decision  we  refer  to  attaches  greater  force  to 
the  fourth  article  of  the  federal  constitution  than  it  is  entitled  to 
receive  under  the  decisions  of  the  Supreme  Court  of  the  United 
States ;  but,  however  this  may  be,  we  think  it  quite  clear  that  the 
present  attack  cannot  be  successful."^" 

The  attack  in  this  case  was  a  collateral  one,  and  for  this  reason 
was  unavailing. 

But  in  a  later  case  our  Supreme  Court  says :  "When  a  foreign 
will  devises  real  estate  situate  in  this  state,  and  a  copy  of  the  same 
and  the  probate  thereof,  duly  authenticated,  is  presented  under 
our  statute  for  filing  and  recording,  that  any  person  mentioned  in 
said  section  may  contest  such  proceedings,  and  if  the  foreign  will 
is  also  admitted  to  probate  or  filed  and  recorded,  such  person 
may  contest  the  same,  within  the  time  prescribed  by  said  section. 
So  far  as  Harris  v.  Harris,  6i  Ind.  117,  may  be  deemed  to  hold 
to  the  contrary  as  to  a  will  devising  real  estate,  the  same  is  over- 
ruled. Such  contest,  if  successful,  has  no  effect  on  said  will  or 
the  probate  thereof  in  the  jurisdiction  where  probated,  but  only 
prevents  the  will  operating  on  real  estate  in  this  state,  and  leaves 

^''  Harris  v.  Harris,  61  Ind.  117.  **  Winslow  v.  Donnelly,  119  Ind.  565, 

22  N.  E.  12. 


§  542  CONTEST    OF    WILLS.  977 

it  to  be  governed  by  our  statute  regulating  the  descent  of  real 
property."*' 

§  542.  Decree  of  court,  its  effect,  costs,  etc. — If  the  deter- 
mination be  against  the  validity  of  such  will  or  the  competency 
of  the  proof,  the  court  shall  refuse  or  revoke  the  probate  thereof ; 
but  if  it  be  in  favor  of  the  validity  and  due  execution  of  such 
will,  probate  thereof  shall  be  admitted  or  ratified.*^  But  the  final 
determination  of  such  cause  against  the  plaintiff  shall  not  debar 
any  other  person  from  contesting  such  will  within  said  three 
years.*^ 

Whenever  the  probate  of  any  will  shall  be  revoked  as  herein 
provided,  the  clerk  of  the  proper  court  shall  record  such  revoca- 
tion in  his  record  of  wills  and  probate  thereof,  and  attest  the 
same,  and  shall  cause  a  notice  thereof  to  be  served  by  the  sheriff 
on  the  executors  or  administrator  with  the  will  annexed,  if  letters 
shall  have  been  issued,  and  cause  notice  thereof  to  be  published 
for  three  weeks  successively  in  a  newspaper  printed  in  his  county, 
if  one  shall  be  printed  therein,  and  the  expenses  for  the  record, 
notice,  service  thereof,  and  publication  shall  be  taxed  as  a  part  of 
the  costs  of  the  proceedings  against  the  party  liable  for  the  costs 
under  the  determination  of  the  court  in  which  the  same  shall  have 
finally  been  determined.^" 

If  such  cause  be  decided  against  the  defendants  therein,  the 
court  may  make  such  orders  as  to  the  payment  of  costs  thereof 
as  it  may  deem  just.^^ 

The  estate  of  a  decedent  may  be  properly  charged  with  the  rea- 
sonable expenses  of  the  executor  of  such  decedent,  in  an  unsuc- 
cessful effort  made  by  him  in  good  faith  to  resist  the  contest  of 
a  will.'^^ 

But  where  the  executor  himself  is  also  a  beneficiary  under  the 

*"  Evansville  &c.  Storage  Co.  V.  Win-  "Burns'  R.  S.  1908,  §  3161;  Whit- 

sor,  148  Ind.  682,  48  N.  E.  592.  tenberger  v.  Bower,  158  Ind.  dlZ,  63 

**  Burns'  R.  S.  1908,  §  3160.  N.  E.  307. 

*»  Burns'  R.  S.  1908,  §  3157;  Cornell  ==  Roll  v.  Mason,  9  Ind.  App.  651,  Zl 

V.  Goodrich,  21  Ind.  179;  Kinnaman  v.  X.  E.  298;  Bratney  v.  Curry,  ZZ  Ind. 

Kinnaman,  71  Ind.  417.  399;   Harrison  v.  Warner,   1   Blackf. 

■"Burns'  R.  S.  1908,  §  3162.  (Ind.)  385. 


978 


INDIANA    PROBATE    LAW 


^543 


will  attorney  fees  paid  In-  him  in  a  contest  of  the  will  should  be 
apportioned  between  him  and  the  estate  he  represents." 

The  taxation  of  costs  in  such  suit  is,  however,  by  this  statute 
left  very  much  within  the  discretion  of  the  trial  court.^' 

If  the  contest  is  successful  it  prevents  the  admission  of  the  will 
to  probate  where  none  has  been  had,  and  revokes  and  sets  aside 
such  probate  if  one  has  been  made.^'' 

And  if  a  will  be  adjudged  invalid  it  is  void  for  all  purposes.^^ 

§  543.  Appeals. — Any  person  affected  by  the  proceedings 
of  such  court  may  appeal  or  prosecute  a  writ  of  error  to  the  Su- 
preme Court  from  either,  and  may  assign  errors  upon  matters  of 
fact  and  law.''  but  so  much  of  this  section  of  the  statute  as  au- 
thorizes an  ai)peal  from  a  question  of  fact  is  rejiealed  by  the  pro- 
visions of  section  696,  Burns'  R.  S.  1908."' 

The  determination  of  the  Supreme  Court  upon  such  writ  of 
error,  or  upon  such  appeal,  shall  be  certified  back  to  the  court 
from  which  the  writ  was  prosecuted,  or  the  appeal  taken,  with 
directions  as  to  what  orders  the  court  shall  make  in  the  premises."* 

Pending  an  appeal  in  an  action  in  which  the  will  has  been  set 
aside  the  court  may  appoint  a  general  administrator  to  have 
charge  and  care  of  the  estate  in  controversy  for  final  administra- 


■"Roll  V.  Mason,  9  Ind.  App.  651,  2>7 
N.  E.  298 ;  Clement's  Appeal,  49  Conn. 
519;  Martin's  Appeal,  81  Pa.  St.  263. 

"Stevens  v.  Stevens,  127  Ind.  560, 
26  N.  E.  1078. 

'''•  Curry  v.  Bratney,  29  Ind.  195.  In 
this  case  the  court  says :  "The  statu- 
tory proceeding  for  trying  the  question 
of  the  validity  of  a  will  does  not,  it 
seems  to  us,  involve  any  question  as 
to  whether  the  will  has  been  admitted 
to  probate.  It  may  be  instituted  be- 
fore probate  or  after.  In  either  case 
it  raises  simply  the  question  of  the 
validity  of  the  will.     In  the  first  case 


the  contest,  if  successful,  prevents  the 
probate,  while  in  the  last  it  revokes 
it.  It  attaches  itself  to  and  becomes  a 
part  of  the  proceedings  of  the  probate, 
so  that  if  the  will  has  been  previously 
admitted  to  probate,  the  court  takes 
judicial  notice  of  that  fact;  if  it  has 
not  been  admitted,  the  judgment  rests 
without  action  until  the  will  is  offered 
for  probate,  if  it  has  not  been  of- 
fered." 

'"  Leach  v.  Prebster,  39  Ind.  492. 

"  Burns'  R.  S.  1908,  §  3163.       . 

"*  Coffman  v.  Reeves.  62  Ind.  334. 

"■"  Burns'  R.  S.  1908,  §  3164. 


543 


CONTEST    OF    WILLS. 


979 


tion,  and  this,  too,  although  a  special  administrator  had  previously 
been  appointed  pending  the  litigation/** 

Only  matters  of  law  can  be  assigned  as  error  on  an  appeal  from 
a  proceeding  to  contest  a  will.*'^ 


""  Hayes  v.  Hayes,  75  Ind.  395.  The 
court  says  in  this  case:  "An  appeal 
does  not  annul  a  judgment;  the  ut- 
most effect  it  can  have,  even  when  ac- 
companied by  the  proper  auxiliary 
proceedings,  is  to  stay  the  enforce- 
ment of  the  judgment  appealed  from. 


There  was,  therefore,  no  reason  why 
the  court  did  not  have  full  power  to 
appoint  a  general  administrator  at  the 
time  letters  were  granted  to  Mat- 
thews." 

•''Wait  V.  Westfall,  161  Ind.  648,  68 
N.  E.  271. 


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